In September 2021, the San Diego Unified School District adopted a “Vaccination Roadmap” requiring students ages 16 or older to be vaccinated for COVID-19 in order to attend in-person classes and participate in sports and other extracurricular activities. Unvaccinated students in this group were involuntarily placed on independent study.
In October 2021, Let Them Choose filed a complaint and petition for a writ of mandate challenging the Roadmap. Let Them Choose is “an initiative of Let Them Breathe, California nonprofit public benefit corporation that represents a community of more than 20,000 parents.”
About six weeks later, a similar complaint was filed by S.V., the parent of a 16-year-old student. The cases were consolidated for trial.
After conducting a hearing on motions for judgment, the trial court ruled that the District’s COVID-19 immunization requirement is preempted by state law. The trial court noted “I think that the state . . . has fully occupied this field, there’s a statewide standard, and a local school district simply doesn’t have the authority to do something inconsistent with the statewide standard.”
The court of appeal affirmed in the published case of Let Them Choose v. San Diego Unified School Dist -D079906 (November 2022).
The issue in this case is whether a school district may require students to be vaccinated for COVID-19 as a condition for both (1) attending in-person class, and (2) participating in extracurricular activities.
A century ago during a smallpox epidemic, the California Supreme Court held that the Legislature may require school children to be vaccinated against that disease. (Abeel v. Clark (1890) 84 Cal. 226, 230.) Since then, the Legislature has required students to be vaccinated for 10 diseases-but COVID-19 is not yet among them.
Health and Safety Code section 120335 provides that a school “shall not unconditionally admit” a pupil who has not been vaccinated for: polio, diphtheria, tetanus, pertussis, hepatitis B, haemophilus influenzae type B (HIB), measles, mumps, rubella, and chicken pox. (§§ 120370, subd. (a)(3), 120335, subd. (b)(1)‒(10).) “Each of the 10 diseases was added . . . through legislative action, after careful consideration of the public health risks of these diseases, cost to the state and health system, communicability, and rates of transmission.”
As enacted in 1995, former sections 120365 and 120370 provided exemptions from the vaccination requirements based on personal beliefs or medical reasons. But in 2015, the Legislature eliminated the personal beliefs exemption for the existing 10 specified vaccinations.
At the same time, it also considered whether vaccination should be mandated on a school district by school district basis, or instead statewide. A bill analysis explained that a statewide standard was preferred. “To provide a statewide standard[ ] allows for a consistent policy that can be publicized in a uniform manner, so districts and educational efforts may be enacted with best practices for each district. . . . Further in consultation with various health officers, they believe a statewide policy provides them the tools to protect all children equally from an outbreak.”
The Legislature has fully addressed the process of adding diseases to the 10 enumerated ones in section 120335. In subdivision (b)(11) of that statute, the Legislature contemplated new vaccine mandates in the future without further legislative action -but assigned that responsibility not to school authorities, but rather to the Department of Public Health. “The Roadmap’s COVID-19 mandate unlawfully seeks to usurp that authority.”
Intrastate preemption occurs when local law duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.
Given the scope of the state statutes, school districts have no remaining discretion in these matters.Thus the Roadmap is preempted because it purports to regulate an area of law that the Legislature has “fully occupied.”