Student Vaccine Mandates Are The Next Political Crisis

Originally published in The Intercept on February 6, 2022.
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IT WASN’T SUPPOSED to take this long to fully approve Covid-19 vaccines for the nearly 17 million U.S. adolescents ages 12-15 and the 28 million children ages 5-11.

Back in early August, Lee Beers, the president of the American Academy of Pediatrics, sent a letter to the U.S. Food and Drug Administration urging the agency to move faster and questioning its request for extra follow-up data before emergency authorization. “We urge the FDA to carefully consider the impact of this decision on the timeline for authorizing a vaccine,” Beers wrote. “There is no biological plausibility for serious adverse immunological or inflammatory events to occur more than two months after COVID-19 vaccine administration.”

New York Times columnist Michelle Goldberg put the situation more bluntly. “The problem is that the F.D.A. won’t be blamed for avoidable Covid cases the same way it would be blamed for unexpected vaccine side effects,” she wrote. “All of its institutional incentives therefore point toward excessive wariness.”

That excessive wariness has dragged on as summer bled into fall, fall into winter, and winter into a new Covid spike from the omicron variant, which infected school-aged children at a much higher rate. The FDA finally granted emergency authorization for Pfizer shots for those ages 5-11 in late October, but the vaccines are still not fully approved. Groups fighting vaccine mandates have taken advantage of the regulatory stall, preparing legal battles that heighten doubt not only in Covid-19 shots but also in public health and government more broadly.

The slow-walking by the FDA has also set the stage for student vaccinations to become the next major Covid-related crisis for the Biden administration. Schools have mandated pediatric vaccinations for hundreds of years, but states and school districts have been fearful of provoking yet another polarized debate around public schools, following pandemic battles over school closures and masks. While the FDA maintains the vaccines, including those under emergency authorization, are safe and effective for children, many parents now say they worry about the expedited process and question whether it’s worth it for kids not at high risk of severe disease. Republicans, looking ahead to the midterms, are taking note.

Most states have avoided calling for students to get vaccinated against Covid-19, and those that have, like California and Louisiana, have said rules won’t take effect until next school year, and then only if the vaccines receive full authorization by the FDA. Already 17 states, mostly GOP-controlled, have passed legislation banning student Covid vaccine mandates — and one piece of litigation challenging vaccine requirements in California is now a contender for Supreme Court consideration. The hope among vaccine proponents is that by September 2022, more youth vaccines will be fully approved and communities will have had more time to build buy-in from hesitant families.

Public health experts have watched this hesitancy with dread, worried about the opportunities vaccine skeptics have now to undermine other routine mandatory vaccinations, as opponents insist that inoculation should be about personal choice and autonomy. Dr. Peter Hotez, co-director of the Texas Children’s Hospital Center for Vaccine Development, supports student vaccine requirements and fears those opposed to vaccines — who have been heartily embraced by conservatives — are getting emboldened by the Supreme Court striking down President Joe Biden’s employer mandate. “Over the last two years we’ve seen a lot of movement with the anti-vaccine movement, and we’re going to see spillover to other vaccines,” he said. “I think we’re already seeing that with the HPV vaccine for teenagers.”

Biden, meanwhile, has avoided taking a clear position on student vaccine requirements and nonpartisan state health officials have largely stayed quiet, even as a patchwork of conflicting new local policies have emerged. This represents a departure from his support of school staff vaccination requirements; in September, he called on governors to mandate vaccines for all school staff, and he’s also endorsed vaccine mandates for workers across the country. But thus far, the Biden administration has demurred weighing in, endorsing instead voluntary strategies like encouraging schools to host their own vaccine clinics. In December, Biden announced new plans, including allowing parents to schedule family vaccination appointments at pharmacies, and establishing mobile family vaccine clinics through FEMA.

The White House’s efforts to avoid clarifying its position on student mandates have grown more conspicuous, accentuating a general void in leadership on Covid-19 response. The Intercept asked the White House if it would support schools requiring Covid-19 vaccines for students if the vaccines had received full FDA approval. Matt Hill, a Biden spokesperson, said the question should be directed to the FDA. An FDA spokesperson told The Intercept the question “about the Biden administration is best suited for the White House.” Hill did not respond to additional requests for comment. The Department of Education did not return requests for comment.

BECAUSE HARDLY ANY student Covid vaccine requirements have gone into effect, no one quite knows what will happen when they do. Policymakers feel understandably hesitant to impose any rules that could keep vulnerable students — particularly Black and Latino students — out of in-person learning for even longer than they’ve already endured.

Like school reopenings and mask requirements, many local policymakers have been waiting to see what neighboring jurisdictions do on student vaccines before taking action themselves. Recently New York City Mayor Eric Adams announced he would consider a Covid-19 vaccine mandate for K-12 students to take effect by the fall, a move that would affect the largest public school district in the nation and surely add pressure on states elsewhere. “In this country, we do vaccinate for smallpox, measles, and other things,” Adams said on CNN. “And so, we need to engage in a real conversation of how to educate, use the time before the fall to educate our parents to show the importance of it.”

Some individual school districts tried to impose vaccine mandates that would take effect this winter rather than next fall, but nearly all have pushed their deadlines back under pressure. Los Angeles Unified School District, the second largest in the nation, was one of the earliest to issue a Covid-19 vaccine requirement for students, saying in September that students 12 and older must be fully vaccinated by January 10 or switch to online schooling.

Yet while 87 percent of eligible LA students had at least one dose of the vaccine by mid-December, the school board voted to delay its vaccine deadline to the fall, given that 30,000 eligible students were still unvaccinated. Shifting all of those young people to virtual learning at once, district officials reasoned, would have been too difficult to manage — not to mention the racial equity concerns. LAUSD Board President Kelly Gonez said their decision was “not about conceding to a vocal minority of anti-vaxxers.” Still, those who oppose mandatory Covid vaccines hailed the delay as a major victory for their movement.

Up north in Oakland, California, the school board passed a similar vaccine requirement in late September for eligible students — about 15,400 of the district’s total 34,000 students — with a deadline of January 1. But by early December, the school board announced it would delay its requirement to January 31 to give parents more time to comply. Officials began ramping up efforts to get shots in teens’ arms, yet by mid-January, more than 6,000 students remained unvaccinated. School board members have since pushed back the mandate a second time, to August.

In late December, Washington, D.C., councilmembers voted overwhelmingly in favor of legislation requiring all eligible students to get vaccinated against Covid-19, one of the few such mandates on the East Coast. The bill sets a vaccination deadline for March 1, though enforcement is delayed until the start of the next school year, a concession to help keep students in school this spring uninterrupted. At the time, just over 40 percent of D.C. children ages 12-17 had received their two shots.

“For so long with Covid we’ve been playing catch up, trying to catch up to a virus that has wreaked havoc on communities and families,” said Councilmember Christina Henderson, the lead sponsor of the bill. “If we know vaccines can really be part of what keeps people out of the hospital, why wouldn’t we add this to the list of other things we do?”

Henderson acknowledged that passing new rules means there will have to be more counseling and conversations, particularly with vaccine-hesitant communities between now and next school year. “Passing mandates pushes responsibility on us and community leaders,” she said. “That means we have to step up to the plate.”

STUDENT VACCINE MANDATES that do take effect at the start of next school year will come head-to-head with Republicans looking to capitalize on parent frustration before the November midterms. Recent polling shows that by a 2-to-1 margin, parents oppose schools from requiring Covid-19 vaccines for eligible students, and conservatives may aim to campaign on that opposition, particularly targeting those suburban voters who have protested the continuation of pandemic-related restrictions in schools. Social scientists have found many parents — particularly, though not exclusively, white Republican and Independent mothers — now avoid reading news about risks Covid could have for children, satisfied with earlier information they consumed about low risks. Republican Glenn Youngkin recently won the governorship in Virginia campaigning hard on a message of “parents rights,” and GOP strategists nationwide have been crafting plans to replicate his victory in the midterms.

Roughly two weeks after D.C. approved its student vaccine requirement, Republican Sen. Ted Cruz announced his intent to overturn it, following up with a tweet blasting Covid mandates, “Schools have no right to FORCE you to get your 5-year old vaccinated.” A Cruz spokesperson declined The Intercept’s request to clarify the Texas senator’s position on mandated pediatric vaccines.

On the eve of the January 6 anniversary of the U.S. Capitol riot, Donald Trump blasted Biden for “talk” that his administration might enforce a vaccine mandate for school children and urged “MAGA nation” to rise up against any such requirements. (Again, the Biden administration has not discussed any student vaccine requirements.)

A national conservative Catholic law firm with ties to Trump’s legal team and which filed multiple lawsuits challenging the results of the 2020 election is also now helping to lead an anti-vaccine fight that could reverberate for schools across the nation. A 16-year-old San Diego high school student and her family filed a lawsuit in October over the district’s Covid-19 vaccine mandate, which did not allow for exemptions over religious belief. The San Diego school board president said they didn’t provide an exemption for personal belief because families may abuse the option.

The student claimed her opposition to abortion means she can’t take the vaccine, because the vaccines approved for emergency use allegedly used materials from stem cell lines in aborted fetuses. Her case is being litigated by Paul Jonna, an attorney from the Thomas More Society.

In a 2-1 panel ruling in December, the 9th U.S. Circuit Court of Appeals upheld the school district’s mandate, ruling that requiring the vaccine was a legitimate health measure that didn’t interfere with the student’s religious practice. The plaintiffs appealed for a review by all the 9th Circuit judges but failed to get majority approval from the 29 active judges. However, 10 judges and one jurist dissented, an unusually high number which could set the stage for the U.S. Supreme Court to take up the case. Jonna has already asked the high court for an emergency injunction, while California state lawmakers are now considering eliminating religious exemptions altogether.

Parent organizations have also taken up the anti-mandate cause, filing lawsuits with mixed success. In Los Angeles, a judge denied two parent groups’ request to block the school district’s vaccine requirement, but out in San Diego, Let Them Choose — a parent group fighting both mask and school vaccine mandates — won a recent court victory, as a San Diego Superior Court judge confirmed in January that San Diego public schools cannot proceed with its student Covid-19 vaccine requirement, even for sports and extracurriculars.

ENCOURAGINGLY, PUBLIC OPINION for the youth vaccines has ticked up over time. After several stagnant months, Kaiser Family Foundation found the share of parents who say their 12-to-17-year-old has gotten at least one Covid shot increased from 49 percent in November to 61 percent in January. A third of parents of 5-to-11-year-olds now also say their child is vaccinated, up from 16 percent in November. Far fewer people in both groups now report they need to “wait and see” before making a decision, and of those who haven’t vaccinated their children, some say they just haven’t been able to find the time. Black and Hispanic parents were about twice as likely as white parents in KFF’s research to say they worried about missing work to get their child a shot or deal with side effects.

More discouragingly, significant partisan splits have emerged, with about half of Republican parents saying in December they would not get their teen or child vaccinated. And even few Democratic politicians have so far been willing to go to bat for requiring the shots, aware that many of the liberal and moderate parents who elected them have been ambivalent themselves. The emotionally charged battles around masks, vaccines, and remote instruction partly reflect the more libertarian drift of public school politics.

Megan Bacigalupi, an Oakland parent who founded OpenSchoolsCA last winter to pressure elected officials to reopen California schools for in-person learning, told The Intercept her organization doesn’t have a clear position on student vaccine requirements and that for now her approach is to encourage parents to talk to their pediatricians. She understands school board members’ rationale for requiring student vaccines but believes comfort level among parents will go up over time and, given the low risk of severe illness among children, worries the consequences outweigh the immediate benefits.

“This is a really complicated issue, and I think you have to meet those vaccine-hesitant people with strategy rather than force,” she said. “While I think a lot of us parents got vaccinated really quickly and got our kids vaccinated quickly, and I fall into that boat, I think a mandate could potentially do more harm than good right now. I don’t think it’s right to kick those kids out of in-person school.”

Omicron cases have been spreading rapidly among young people: The American Academy of Pediatrics reports that of the 11.4 million child Covid-19 cases since the onset of the pandemic, 3.5 million child cases were reported in January alone. Yet some parents say they don’t feel pressure to get their kid vaccinated, since omicron cases tend to be less severe.

“People have different perceptions of risks, some people who look at the data say, ‘only 800 children have died,’ while others look at the same date and say ‘but 800 children have died,’” said Leana Wen, a professor of health policy and management at George Washington University. Hotez, of Texas Children’s Hospital, also warned of “more subtle morbidities” and the fact that long-term risks to neurodevelopment are still not clear. He pointed to a large U.K. study released in September led by University College London and Public Health England, which found as many as 1 in 7 children may have symptoms linked to Covid-19 months after testing positive.

Let Them Choose — the parent group fighting both mask and school vaccine mandates — has been encouraging families to send letters to their school district leaders, saying, “I am not anti-vax, but I am pro-choice when it comes to this very new vaccine for a virus that our children are extremely resilient to.” The letter falsely claims “there is no reason” to vaccinate kids to protect more vulnerable populations and maintains that parents want to see more long-term studies before making any decisions.

The Biden administration, for its part, is just hoping everything all works out.