Some public health experts are concerned herd immunity against COVID-19 will not be achieved, even after COVID-19 vaccines become widely available. This would occur is enough people refuse to be inoculated, and parents refuse to vaccinate their children.

School-required COVID-19 vaccinations could help society achieve herd immunity against COVID-19. California schools already require students to be immunized for diphtheria, hepatitis B, haemophilus influenzae type b, measles, mumps, pertussis (whooping cough), poliomyelitis, rubella, tetanus, and varicella (chickenpox) (Health and Safety Code §§ 120325(a)(1)–(10)). In addition, statutory authority for mandating COVID-19 vaccinations is already in place. Health and Safety Code § 120175 allows local health authorities to “take any action . . . necessary to control the spread of [a] communicable disease” and makes violations of such regulations a misdemeanor. (Health & Saf. Code § 120175.5(b)) The legislature may constitutionally delegate its police power to make public health policy decisions to local health boards. This existing statutory structure potentially permits state and local health authorities to require vaccinations even without specific legislative authorization for a COVID-19 vaccine program.

Another potential solution is a state statute mandating COVID-19 inoculations, assuming a vaccine is widely available, safe, and effective, perhaps by amending Health and Safety Code § 120325 with respect to students and enacting a new law requiring that everyone else in California receive it. The legislature could also provide medical exemptions for the COVID-19 vaccine to immune-compromised individuals.

U.S. law supports such public health solutions. Jacobson v. Massachusetts (1905) upheld a Massachusetts law that mandated smallpox vaccinations and punished violators with a fine. The U.S. Supreme Court affirmed the state’s power to pass laws necessary “to protect the public health and secure the public safety,” so long as they are not arbitrary, unreasonable, or go “far beyond” what is reasonably required for public safety. Since Jacobson, a mandatory vaccination has never been held unconstitutional.

Nevertheless, opponents of compulsory vaccination may argue that the practice violates due process (Cal. Const., art. I, § 7), free exercise of religion (Cal. Const., art. I, § 4), the right to attend school (Cal. Const., art. IX, § 5), equal protection (Cal. Const., art. I, § 7), and statutes forbidding non-consensual medical experimentation (see Health and Safety Code § 24175). Others raise moral or philosophical objections, or refuse vaccinations because they believe vaccinations are unsafe. Although courts have rejected these arguments many times, opponents of mandatory vaccination likely will resurrect them.

In addition, the California constitution provides that a right to education is a “fundamental interest.” (see Cal. Const., art. IX, § 5; Serrano v. Priest (1971) at 608–09) If the government required a COVID-19 vaccination to enter or re-enroll in California schools, challenges based on the right to education will most probably follow (and be defeated).

Although the initial rollout of vaccinations will probably be in a ranked fashion (i.e., the first recipients will be those who are most exposed to the disease while acting in a role helping those diseased [medical and emergency services’ workers] and those most vulnerable to the disease [nursing home residents], then in an order wherein the vaccinated are those progressively less elderly or less immune-compromised until healthy children are the last to be vaccinated), it is important to plan now. Schools can initially serve as vaccination hubs for their teachers and staff and other adults in their communities, and eventually transform into sites for vaccinating their students