In response to an inquiry from a state representative, Texas Attorney General Ken Paxton recently issued an opinion on whether school districts can exclude students who claim an exemption from non-coronavirus vaccines, saying the courts “could find exclusion from school for refusal to obtain a vaccine unrelated to the existing epidemic to be arbitrary and unreasonable and overturn the exclusion for this purpose.”

Last summer, amid the government economic lockdowns and mandates due to the Chinese coronavirus, a report was published claiming—with some exceptions—vaccinations would be mandatory for all Texas students. The citizen organization Texans for Vaccine Choice responded by involving State Rep. James White (R–Hillister).

“In anticipation of the potential for school districts to incorrectly apply current state vaccine exemption law during the COVID-19 outbreak, TFVC contacted Texas House Chairman James White, who promptly asked Texas Attorney General Ken Paxton to issue an Attorney General’s Opinion,” TFVC executive director Jackie Schlegel wrote in a statement last week.

On March 5, Paxton published an eight-page reply to White’s question, pointing out that “while the U.S. Food and Drug Administration has recently approved a COVID-19 vaccine for emergency use, it is not broadly available nor approved for use by children.”

He reviewed the Texas Education Code, which states, “Each student shall be fully immunized against diphtheria, rubeola, rubella, mumps, tetanus, and poliomyelitis, except as provided by Subsection (c).”

“The Department of State Health Services (“Department”) may require immunization against additional diseases beyond those listed in statute,” Paxton observed.

We find no case standing for the proposition that the State may punitively exercise its public-health police power against an individual who lacks an immunization entirely unrelated to a public health emergency.

In his summary, Paxton concludes that:

“Pursuant to subsection 38.001(f) of the Education Code, the Legislature provided that a student who has not received the immunizations required by law ‘for reasons of conscience, including because of the person’s religious beliefs, may be excluded from school in times of emergency or epidemic declared by the commissioner of public health,” he wrote. “Read in context, a court likely would conclude that this exception does not permit exclusion of students who lack vaccinations unrelated to an existing ‘epidemic’ contemplated by subsection 38.001(f).”

Depending on the particular facts at issue, a court could find exclusion from school for refusal to obtain a vaccine unrelated to the existing epidemic to be arbitrary and unreasonable and overturn the exclusion for this purpose.

“Paxton reasoned that provisions in state law that allow a school to exclude unvaccinated students during an epidemic only apply to those students who have not received a vaccine related to the epidemic,” Schlegel wrote in her statement. “Because no COVID-19 vaccine is currently approved by the FDA for use by children under the age of 16, nor has it gone through the process to be added to the list of vaccines required for school enrollment, the issue of whether a student is vaccinated is irrelevant to the COVID-19 epidemic.”

Paxton notes a brief he received from the Texas Medical Association stating, “The compounding effect of multiple disease outbreaks on community health and local health department resources can … overwhelm health care systems,” and that “children … at risk for more severe outcomes from COVID-19 may include those who are unable to receive necessary vaccinations for medical reasons.”

For those concerned about vaccine choice, Paxton’s letter also offers a reason for citizens to remain watchful.

“The U.S. Supreme Court has considered laws requiring vaccinations during times of an emergency or epidemic and has concluded that generally it is within the police power of a state to provide for compulsory vaccination to protect the public health and the public safety,” he wrote.

“The U.S. Supreme Court has explained that a state’s police power to compel vaccinations may not be wielded arbitrarily. The Court has recognized ‘that an acknowledged power of a local community to protect itself against an epidemic’ could be ‘exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.’”

Schlegel expressed satisfaction with Paxton’s letter.

“Texans for Vaccine Choice is pleased with the result of this opinion, and applauds Attorney General Paxton’s commitment to protect parental rights and religious liberties,” she wrote. “While this opinion is a win for personal liberty and medical privacy, Texans for Vaccine Choice will continue to closely monitor this issue and update concerned families as more information becomes available.”

Robert Montoya

Born in Houston, Robert Montoya is an investigative reporter for Texas Scorecard. He believes transparency is the obligation of government.