DISTRICTS ‑- SCHOOLS ‑- HEALTH ‑- IMMUNIZATION ‑- CONSTITUTIONALITY OF IMMUNIZATION REQUIREMENT FOR SCHOOL ATTENDANCE

DISTRICTS ‑- SCHOOLS ‑- HEALTH ‑- IMMUNIZATION ‑- CONSTITUTIONALITY OF IMMUNIZATION REQUIREMENT FOR SCHOOL ATTENDANCE

Certain proposed legislation now pending before the state legislature (see Senate Bill No. 2241 and House Bill No. 502) to require specified immunizations of school age children as a prerequisite for admission to public or private schools would, if enacted as drafted, be constitutionally valid.

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                                                                  March 28, 1979

Honorable Hubert F. Donohue
Chairman
Senate Committee on Ways and Means
103 Public Lands Building
Olympia, Washington 98504

                                                                                                                   Cite as:  AGO 1979 No. 6

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office regarding the constitutionality of certain proposed legislation to require specified immunizations of school age children as a prerequisite for admission to school.

            We believe that such legislation, if enacted as drafted, would be constitutionally valid.

                                                                     ANALYSIS

                                                                             I.

                                                               INTRODUCTION

            The proposed legislation1/ with which you are concerned is entitled:

             [[Orig. Op. Page 2]]

            "AN ACT Relating to the immunization of children; creating new sections; adding new sections to chapter 223, Laws of 1969 ex. sess. and to chapter 28A.31 RCW; providing an effective date; and declaring an emergency."

            Section 1 then sets forth the following statement as to the underlying basis for its enactment:

            "In enacting sections 1 through 12 of this act, it is the judgment of the legislature that it is necessary to protect the health of the public and individuals by providing a means for the eventual achievement of full immunization of school-age children against certain vaccine‑preventable diseases including diphtheria, pertussis, tetanus, poliomyelitis, measles, mumps, and rubella."

            Section 2 is a definitions' section which includes, inter alia, the following definition of "full immunization:"

            "'Full immunization' shall mean immunization against diphtheria, pertussis, tetanus, poliomyelitis, measles, mumps, and rubella in accordance with schedules and with immunizing agents approved by the state board of health."

            The basic operative provisions of the proposed legislation are contained in § 3 which provides:

            "The attendance of every child at every public and private school in the state and licensed day care center shall be conditioned upon the presentation within forty-five days of each child's first day of attendance at a particular school or center, of proof of either (1) full immunization, (2) the initiation of and compliance with a schedule of immunization, as required by rules of the state board of health, or (3) a certificate of exemption as provided for in section 4 of  [[Orig. Op. Page 3]] this act.  The attendance at the school or the day care center during any subsequent school year of a child who has initiated a schedule of immunization shall be conditioned upon the presentation of proof of compliance with the schedule on the child's first day of attendance during the subsequent school year.  Once proof of full immunization or proof of completion of an approved schedule has been presented, no further proof shall be required as a condition to attendance at the particular school or center."

            Next, however, § 4 provides for the following exemptions:

            "Any child shall be exempt in whole or in part from the immunization measures required by sections 1 through 12 of this act upon the presentation of any one or more of the following, on a form prescribed by the department of social and health services.

            "(1) A written certification signed by any physician licensed to practice medicine pursuant to chapter 18.71 or 18.57 RCW that a particular vaccine required by rule of the state board of health is, in his or her judgment, not advisable for the child:  PROVIDED, That when it is determined that this particular vaccine is no longer contraindicated, the child will be required to have the vaccine;

            "(2) A written certification signed by any parent or legal guardian of the child or any adult in loco parentis to the child that the religious beliefs of the signator are contrary to the required immunization measures; and

            "(3) A written certification signed by any parent or legal guardian of the child or any adult in loco parentis to the child that the signator has either a philosophical or personal objection to the immunization of the child."

             [[Orig. Op. Page 4]]

In addition, § 5 provides that:

            "The requirements of sections 1 through 12 of this act shall not apply to any person eighteen years of age or older, nor shall they apply to any female person twelve years of age or older with respect to immunization for rubella."

            Section 6 then reads as follows:

            "The immunizations required by sections 1 through 12 of this act may be obtained from any private or public source desired:  PROVIDED, That the immunization is administered and records are made in accordance with the regulations of the state board of health.  Any person or organization administering immunizations shall furnish each person immunized, or his or her parent or legal guardian, or any adult in loco parentis to the child, with a written record of immunization given in a form prescribed by the state board of health."

            Sections 7 and 8 are basically procedural and spell out the means by which admission or exclusion (as the case may be) is to be accomplished.  These two sections read as follows:

            Section 7:

            "A child's proof of immunization or certification or exemption shall be presented to the chief administrator of the public or private school or day care center or to his or her designee for that purpose.  The chief administrator shall:

            "(1) Retain such records pertaining to each child at the school or day care center for at least the period the child is enrolled in the school or attends such center;

             [[Orig. Op. Page 5]]

            "(2) Retain a record at the school or day care center of the name, address, and date of exclusion of each child excluded from school or the center pursuant to section 8 of this act for not less than three years following the date of a child's exclusion;

            "(3) File a written annual report with the department of social and health services on the immunization status of students or children attending the center at a time and on forms prescribed by the department of social and health services; and

            "(4) Allow agents of state and local health departments access to the records retained in accordance with this section during business hours for the purposes of inspection and copying.

            Section 8:

            "Upon notification by the local health department, it shall be the duty of the chief administrator of every public and private school and day care center to prohibit the further presence at the school or day care center for any and all purposes of each child for whom proof of immunization, certification of exemption, or proof of compliance with an approved schedule of immunization has not been provided in accordance with section 3 of this act and to continue to prohibit the child's presence until such proof of immunization, certification of exemption, or approved schedule has been provided.  The exclusion of a child from a school shall be accomplished in accordance with rules of the state board of education.  The exclusion of a child from a day care center shall be accomplished in accordance with rules of the department of social and health services.  Prior to  [[Orig. Op. Page 6]] the exclusion of a child from a school or day care center each local health department shall provide written notice to the parent(s) or legal guardian(s) of each child or to the adult(s) in loco parentis to each child, who is not in compliance with the requirements of section 3 of this act.  The notice shall fully inform such person(s) of the following:  (1) The requirements established by and pursuant to sections 1 through 12 of this act; (2) the fact that the child will be prohibited from further attendance at the school unless section 3 of this act is complied with; (3) such procedural due process rights as are hereafter established pursuant to sections 10 and/or 11 of this act, as appropriate; and (4) the immunization services that are available from or through the local health department and other public agencies."

            The remainder of the proposed legislation grants certain rule making authority to the State Board of Health (§ 9), the State Board of Education (§ 10) and the Department of Social and Health Services (§ 11).  Finally, § 12 provides for the following timetable for implementation:

            "Sections 1 through 12 of this act shall not apply to children in grades seven through twelve before September 1, 1980."

                                                                            II.

                                                         QUESTION PRESENTED

            You have not identified any particular provisions of the federal constitution or of our state constitution as bearing upon your question.  We would, however, assume your concern is with those provisions which would likely be invoked to mount a constitutional challenge to this legislative proposal on grounds relied upon in challenges to similar legislation in other states.  We will, therefore, proceed accordingly.

             [[Orig. Op. Page 7]]

            A.Police Power and Due Process:

            Both the United States and Washington State Constitutions contain "due process" clauses.  Thus, U.S. Const., Amendment XIV, § 1 says:

            ". . . nor shall any state deprive any person of life, liberty, or property, without due process of law; . . ."

            Similarly, Wash. Const., Art. I, § 3 provides that:

            "No person shall be deprived of life, liberty, or property, without due process of law."

            These two provision place two analytically distinct limitations on state action.  First, substantive due process prevents a state from enacting arbitrary and unreasonable legislation, regardless of the statute's procedural fairness.  Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed.2d 288 (1937).  And secondly, procedural due process prevents a state from depriving a person of life, liberty or property without notice and a hearing.  Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).  Goss v. Lopez, 419 U.S. 565, 572-574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).

            (1)Substantive Due Process:

            The first issue raised by the proposed legislation is whether a child's liberty and property interests may be limited by requiring him, subject to certain exceptions, to present evidence of immunizations to specified diseases as a prerequisite to his continued attendance at a school or day care center.2/

             [[Orig. Op. Page 8]]

            As a matter of federal constitutional law, it is well settled that is within the police power3/ of a state to provide for compulsory vaccination of its citizens generally,Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), and for the vaccination of school age children against contagious diseases as a prerequisite for admission to school in particular,Zucht v. King, 260 U.S. 174, 43 S.Ct. 24, 67 L.Ed. 194 (1922).  Thus, speaking for the court in Jacobson,supra, Justice Harlan stated:

             [[Orig. Op. Page 9]]

            ". . .  Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and 'health laws of every description;' indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states.  According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. . . .  The mode or manner in which those results are to be accomplished is within the discretion of the state, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a state . . . shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument. . . ."4/

             In Zucht v. King, supra, the petitioners contended, inter alia, that a city ordinance requiring a certificate of vaccination against smallpox as a prerequisite to attendance at a public school or other place of education, in the absence of an existing emergency, violated their rights to due process of law.  The court held, however, that the petitioners failed to present a question sufficiently substantial to support the writ of error, citing Jacobson.

            Although both of the United States Supreme Court cases above cited involved state statutes requiring immunization only from smallpox, the instant proposal to require immunization from other diseases as well (diphtheria, pertussis, tetanus, poliomyelitis, measles, mumps and rubella) would nevertheless still fall within the police power of the state.

             [[Orig. Op. Page 10]]

Those are matters of legislative judgment with which the courts will not interfere unless it can be said that they are arbitrary, capricious or unreasonable.  Jacobson v. Massachusetts,supra; Wright v. DeWitt School District No. 1 of Arkansas County, 238 Ark. 906, 385 S.W.2d 644 (1965);McCartney v. Austin, 57 Misc.2d 525, 294 N.Y.S.2d 188 (Sup.Ct. Broome Cy. 1968),aff'd, 31 A.D.2d 370, 298 N.Y.S.2d 26 (App. Div., 3d Dep't 1969);State ex rel. McBride v. Superior Court, 103 Wash. 409, 174 Pac. 973 (1918).

            State courts have also generally upheld, over due process objections, the immunization of school children‑-even in the absence of an emergency‑-as a reasonable exercise of the police power.  See,Hartman v. May, 168 Miss. 477, 151 So. 737, 93 A.L.R. 1413 (1934); Board of Education of Mountain Lakes v. Maas, 56 N.J. Super. 245, 152 A.2d 394 (App. Div. 1959), aff'd, 31 N.J. 537, 158 A.2d 330 (1960), cert. denied, 368 U.S. 843, 80 S.Ct. 1613, 4 L.Ed.2d 1727 (1960);In re Elwell, 55 Misc.2d 252, 284 N.Y.S.2d. 924,dispositional hearing, 55 Misc.2d 497, 286 N.Y.S.2d 740 (Fam. Ct., Duchess Cy., 1967).  Furthermore, there is even an earlier Washington case in point.  We have reference to State ex rel. McFadden v. Shorrock, 55 Wash. 208, 104 Pac. 214 (1909) in which the appellant unsuccessfully challenged a statute providing, in relevant part, that:

            "'Every board of directors [of a public school district] shall have power, and it shall be their duty . . .

            "'Ninth:  To require successful vaccination as a condition of school membership. . . .'"

            In upholding this statute the Washington court noted and relied uponJacobson,supra, saying:

            '. . . the legislature has power to require all minors to attend the public schools, and to require them to be vaccinated before so attending.  Jacobson v. Massachusetts, 197 U.S. 11, 11 Sup. Ct. 39, 49 L.Ed. 643. . . ."

             [[Orig. Op. Page 11]]

            The Washington Supreme Court has also held that, even in the absence of any health emergency, the police power is adequate authority for a state statute requiring examination of all bovine animals for tuberculosis by state inspectors,Hacker v. Barnes, 166 Wash. 558, 7 P.2d 607 (1932), and for a city ordinance providing for fluoridation of the municipal water supply in order to inhibit dental caries, Kaul v. The City of Chehalis, 45 Wn.2d 616, 277 P.2d 352 (1954).  InKaul, the court said at p. 623:

            ". . . We find nothing in this jurisdiction which limits the police power, exercised in the realm of public health, solely to the control of contagious diseases, as distinguished from noncontagious diseases.  Further, under the police power, a health regulation may be an effective public measure, without the existence of some immediate public necessity."

            Based on the foregoing precedents, and applying the test of Shea v. Olson, supra, we are of the opinion that the proposed legislation with which you are here concerned would "reasonably tend to promote" the interests of the state in protecting our school children from certain specified diseases‑-by requiring their immunization as a condition upon entry into private and public schools and day-care centers‑-without violating any direct or positive mandate of either the state or federal constitution.

            (2)Procedural Due Process:

            InGoss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), the United States Supreme Court recently addressed the issue as to what procedural rights public school students have when they are subjected to disciplinary suspensions or corporal punishment.  The plaintiffs were students in the Columbus, Ohio public school system who had been summarily suspended from school for up to ten days (inclusive of eight school days) for disciplinary reasons.  The court held that such students may not be excluded from public school "for more than a trivial period"5/ without being given "some kind of notice and afforded some kind of hearing."6/   The timing and nature of such notice  [[Orig. Op. Page 12]] and hearing, however, depends on the "appropriate accommodation of the competing interests involved."7/   Although in most disciplinary situations notice and hearing must precede removal of a student from school, they may follow his removal where his presence poses "a continuing danger to persons or property or an ongoing threat of disrupting the academic process. . . ."8/

             As in Goss, under the proposed legislation, children can be totally excluded from school "for more than a trivial period."  Nevertheless, we also believe that the proposal as drafted complies with the procedural due process requirements as outlined in that case.  Section 8,supra, requires that before a child is excluded from a school or day-care center, his parent(s) or legal guardian(s) must be given written notice of the reasons for the exclusion and of the procedures that have been established through which the decision to exclude the child can be contested.  Sections 9, 10 and 11 delegate to the State Board of Education, and the State Board of Health the authority to adopt rules to afford procedural due process to the child and his parent(s) or legal guardian(s).  Such would further be a lawful delegation of power for ". . . the complexity and character of the subject matter of legislation are factors to be considered when determining whether there has been an unlawful delegation of legislative power. . . ."  O'Connell v. Conte, 76 Wn.2d 280, 285, 456 P.2d 317, 320 (1969);  see also,Barry & Barry v. Dep't of Motor Vehicles, 81 Wn.2d 155, 500 P.2d 540 (1972).  An appropriate "accommodation of the competing interests involved" would depend on technical insights into the nature and severity of the diseases sought to be controlled and an assessment of the risks associated with alternative kinds of procedures that might be followed under various circumstances.  It is enough that the legislature would have enunciated the general standard by which the Board of Health and Board of Education would be guided‑-that is, to afford "procedural due process rights."

            B.Equal Protection:

            Under what is commonly referred to as the Equal Protection Clause of Amendment 14 to the United States Constitution, ". . . No state shall . . . deny to any person within its jurisdiction the equal protection of the laws."  And similarly, Article I, § 12, of our own state constitution provides that:

             [[Orig. Op. Page 13]]

            "No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations."

These two constitutional provisions, although somewhat differently worded, have been consistently construed to have the same basic meaning; i.e., that persons similarly situated should receive the same treatment under the law.  See,e.g.,Markham Advertising Co. v. State, supra.

            Some state laws which require evidence of immunity to contagious diseases as a prerequisite for admission to school have exempted students whose parents or guardians object in writing that such a requirement "interferes with the free exercise of his religious principles."  Other state laws have provided a similar exemption where the parents or guardians are "bona fide members of a recognized religious organization whose teachings are contrary" to immunizations.  In_Dalli v. Board of Education, 358 Mass. 753, 267 N.E.2d 219 (1971) such an exemption provision was held to deny equal protection of the laws to persons whose objections to vaccination are also grounded in religious belief but who do not happen to belong to a "recognized church or religious denomination" within the statutory exemption.  See also,Kolbeck v. Kramer, 84 N.J. Super. 569, 202 A.2d 889, modified 46 N.J. 46, 214 A.2d 408 (1965), wherein the plaintiff contended that a statutory exemption from the requirement for vaccination on the basis that "the proposed vaccination interferes with the free exercise of . . . religious principles" was invidiously discriminatory as applied.  The state university exempted only those students who adhere to the Christian Science faith.  The court agreed with the plaintiff, stating:  ". . .  Membership in a recognized religious group cannot be required as a condition of exemption from vaccination under statute and constitutional law."  84 N.J. Super. at 576, 202 A.2d at 893.

            Because of the wording of § 4(2) and (3) of the instant legislative proposal, however, neither of these two equal protection objections would appear to lie with respect to the here subject legislation.  Once again, those two subsections afford exemptions from the mandatory immunization requirement based upon:

            "(2) A written certification signed by any parent or legal guardian of the child or any adult in loco parentis to the child that the religious beliefs of the signator are contrary to the required immunization measure; and

             [[Orig. Op. Page 14]]

            "(3) A written certification signed by any parent or legal guardian of the child or any adult in loco parentis to the child that the signator has either a philisophical or personal objection to the immunization of the child."9/

             C. Freedom of Religion:

            The First Amendment to the federal constitution states, in relevant part, that:

            "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . ."

            These constitutional guarantees also apply to state action (seeCantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)).  Moreover, Article I, § 11 of our state constitution provides similar guarantees, as follows:

            "Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent  [[Orig. Op. Page 15]] with the peace and safety of the state.  No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment. . . ."  (Emphasis supplied)

At least in broad outline, the limitations that our state constitution thus expressly place on the right to free exercise of religion have been read into the First Amendment by the Supreme Court.  Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944);Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879).  Nevertheless, laws requiring evidence of immunity from contagious diseases as a condition on admission to school have been upheld against claims of violation of the parents' right to free exercise of religion under both the federal and analogous state constitutional provisions.  MaCartney v. Austin,supra;Cude v. State, 237 Ark. 927, 37 S.W.2d 816 (1964);Wright v. DeWitt School District No. 1 of Arkansas County,supra; see also Annot., 93 A.L.R. 1413.  To the extent that the admission of students not immunized against diphtheria, pertussis, tetanus, poliomyelitis, measles, mumps or rubella presents a "clear and present danger" to others in the schools, it is no violation of their right to free exercise of religion to bar them from the schools.  State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952).

            We need not, however, even reach that question here in view of the exemptions contained in § 4(2) and (3), supra.

            D.Right to Public School Education:

            Finally, let us consider the relationship between the proposed legislation with which you are concerned and the following provisions of Article IX of the Washington State Constitution:

            "It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex."  (Sec. 1)

             [[Orig. Op. Page 16]]

"The legislature shall provide for a general and uniform system of public schools.  The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established.  But the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools."  (Sec. 2)

            InSeattle School District No. 1 v. State, 90 Wn.2d 476, 585 P.2d 71 (1978), our court held that since Art. 9, § 1, supra, imposes upon the state the paramount duty of making ample provision for the education of all resident children, the corresponding right in each such child is absolute in nature.  The proposed legislation's requirement of evidence of immunity from certain diseases as a prerequisite for admission to school would not invade that right, however, as each child's right comprehends only "ample provision for . . . [his] education" and not the right to state‑supported education devoid of any legislatively-imposed standards for admission.10/   Where the state has amply provided for a child's education by establishing and maintaining an adequate system of public schools, a child's failure to satisfy all lawful requirements for admission to school constitutes no interference with his Article IX right and the State's duty has been discharged.  In theSeattle School District case the court stated this principle in a footnote as follows: