Vaccination Necessary Before Pupils Can Attend Public Schools, Unless After Due Diligence Successful Vaccination Is Impossible

by Percy V. Long

Vaccination Necessary Before Pupils Can Attend Public Schools, Unless After Due Diligence Successful Vaccination Is Impossible.

San Francisco, Cal., October 5, 1909.

Gentlemen: I am in receipt of yours of September 28th, as follows:

“The Board of Education would like advice from you as to the power of this Board and the power of the Board of Health, regarding the admission and exclusion of pupils from the public schools, because of non-vaccination.”

"The case before us is this: Margaret Ronan, a pupil, has been sent home because not vaccinated. The Health Officer says that he must, under the law, require that she be vaccinated. The family physician holds that her condition is such that vaccination is dangerous."

Opinion.

Section 1 of Act No. 2840, of the Legislature of the State of California, approved February 20, 1889 (Statutes 1889, page 32), provides as follows:

“Section 1. The Trustees of the several common-school districts in this State, and Boards of common-school government in the several cities and towns, are directed to exclude from the benefits of the common schools therein any child or any person who has not been vaccinated, until such time when said child or person shall be successfully vaccinated; provided, that any practicing and licensed physician may certify that the child or person has used due diligence and cannot be vaccinated so as to produce a successful vaccination, whereupon such child or person shall be excepted from the operation of this Act."

The language "Boards of common-school government in the several cities," includes the Board of Education of the City and County of San Francisco. Your Board, therefore, is directed under this law to exclude from the benefits of the common schools of this City any child or person who has not been vaccinated until such time as such child or person shall be successfully vaccinated, or until it is made to appear, as provided in the said law, that said child or person cannot be so successfully vaccinated. This law has been upheld in two cases by the Supreme Court of the State of California as being constitutional and valid, to wit, Abeel vs. Clark (84 Cal., page 226) and French vs. Davidson (143 Cal., 658). The first of the above cases was in Santa Cruz and the second in San Diego, and in each case it was held that the petitioners were not entitled to a writ of mandamus compelling their admission to the public schools, without their meeting the requirements of the Statute.

You are therefore advised that your Board has the power to refuse admission to the pupils of the public schools of this City because of non-vaccination, when these pupils fail to comply with the requirements of this Statute. It must, however, be borne in mind, that if any practicing and licensed physician certifies that a child or person has used due diligence, and cannot be vaccinated so as to produce a successful vaccination, then your Board would be bound to make an exception in such cases.

Respectfully,

PERCY V. LONG,

City Attorney.

Board of Education.