Texas Attorney General, Ken Paxton
By Bethany Blankley | The Center Square
In response to an inquiry from state Rep. James White, R–Hillister, Texas Attorney General Ken Paxton issued an opinion on school district policy related to vaccine mandates.
White expressed concerns about a news report issued by KSAT-TV in San Antonio, pointing to mandatory vaccine requirements. Prior to students enrolling in school last fall, vaccine requirements (not COVID vaccines) were mandatory, although there were some exemptions.
The Texas Department of State Health Services has decided school vaccination rules are in effect for the 2020-2021 school year, regardless of whether the education is received virtually or in person. That goes for college students, too.
Metro Health Immunization Clinic Supervisor Martha Groomer told KSAT, “They have to register to be at that school or to be part of the education curriculum. They will be asking for an immunization record, so they will know.”
An advocacy organization, Texans for Vaccine Choice (TFVC), appealed to White to provide clarification, who in turn asked Paxton for a legal opinion.
“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 said in a news release.
“TFVC’s objective was to seek clarity from the Texas Attorney General’s Office that would close the door on school districts’ ability to enforce a de-facto vaccine mandate on Texas children.”
Earlier this month, 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.”
No COVID-19 vaccine is currently approved by the FDA for use by children under the age of 16, nor has the vaccine gone through the regulatory process to be added to the required list of vaccines children must have in order to be enrolled in public schools.
The Texas Education Code currently requires each student to be “fully immunized against diphtheria, rubeola, rubella, mumps, tetanus, and poliomyelitis, except as provided by Subsection (c).”
The Texas Department of State Health Services “may require immunization against additional diseases beyond those listed in statute,” Paxton wrote, but excluding unvaccinated students from receiving an education could violate their religious liberties protected by the U.S. and Texas Constitutions and state law.
The opinion also points to subsection 38.001(f) of the state education code, which states that a student who has not received 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. 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).”
Schlegel applauded Paxton’s guidance, saying it showed that he was committed to protecting parental rights and religious liberties.
However, Paxton pointed to U.S. Supreme Court precedent, which considered laws requiring vaccinations during times of an emergency as generally falling “within the police power of a state to provide for compulsory vaccination to protect the public health and the public safety.”
“The U.S. Supreme Court has explained that a state’s police power to compel vaccinations may not be wielded arbitrarily,” he wrote. “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.’”
In 2003, the Texas legislature passed changes to state statutes expanding the list of reasons parents can claim to exempt their children from required vaccinations.
The Texas Department of State Health Services provides information about requests for affidavits, submission guidelines for schools, and medical exemption criteria. Texans for Vaccine Choice also provides a list of resources to help parents navigate the process.
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