See You In Court - June 2021

Peter Parent has long been suspicious of vaccines.  When his son Petey reached preschool age last fall, Peter presented a duly-acknowledged religious exemption request, and Petey was admitted to preschool without a hitch.  With the start of the 2021 legislative session and all the talk about eliminating the religious exemption, however, Peter became increasingly concerned about his Petey’s ability to attend kindergarten in the Nutmeg Public Schools this fall without having to get vaccinated.  To be safe, in March Peter registered Petey at the Acorn Elementary School for the fall of 2021.  When the General Assembly then passed Public Act 21-6, Peter thought that Petey was all set for kindergarten.  But to be safe, Peter emailed Mr. Principal, asking him to confirm that Petey will be able to enter kindergarten at Acorn Elementary School next fall without having to be vaccinated.

Mr. Principal didn’t quite know what to do with this request.  From the articles he read in the newspaper, Mr. Principal understood that there was some sort of accommodation for students who had already asserted a religious exemption.  However, giving Peter Parent a definitive answer was above Mr. Principal’s pay grade, and he kicked the question upstairs to Ms. Superintendent.  Ms. Superintendent was also uncertain, and she told Mr. Principal just to tell Peter Parent that he would have to wait and find out in the fall.

Peter Parent was irate to receive this “non-answer,” and he promptly hired prominent Nutmeg attorney, Bill Alot.  Bill sent a letter to the Board Chairperson, demanding that the Board immediately hold a school-accommodations hearing for his client. 

Mr. Chairperson shared the letter with the other Board members and Ms. Superintendent when the Board convened into executive session at its next meeting, and he asked Ms. Superintendent what is going on with the Parent family.  Ms. Superintendent explained that she didn’t give Peter an answer for next fall because she was trying to get up to speed on the new law and simply didn’t know what to tell him.  Bob Bombast asked Ms. Superintendent whether Petey has a religious exemption now, and she told him and the other Board members that he does.  The Board discussed whether that exemption would be effective for kindergarten next year, and to be safe they decided to require that Petey be vaccinated.

Ms. Superintendent emailed Attorney Bill Alot the next day: “After considering your request, the Nutmeg Board of Education has decided that Petey will have to be vaccinated before he attends kindergarten at Acorn Elementary.  Let me know if you have questions.”

Bill Alot responded almost immediately.  “Peter Parent asked for a hearing, not a Star Chamber proceeding.  When will the Board be holding the hearing we requested?”

Does the Nutmeg Board of Education have a problem?

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Yes, it does.  The law specifically addresses students in Petey’s situation, though we do await further guidance on whether registration of a student for kindergarten next year would be considered “enrollment” in school.  Also, the Board members need a lesson on due process.

Until April 28, 2021, a child could be exempted from the requirement of vaccination as a condition for attending school if the parent or guardian presented a statement “that such immunization would be contrary to the religious beliefs of such child or the parents or guardian of such child,” which statement had to be acknowledged as described in the statute.  Public Act 21-6 was effective upon passage (April 28, 2021), and, as widely reported, it amends Conn. Gen. Stat. § 10-204a to eliminate the religious exemption from the vaccination requirement.  However, it includes provisions that will permit certain students to continue to attend school without complying with the vaccination requirements. 

The main exception provides:

The immunization requirements provided for in subsection (a) of this section shall not apply to any child who is enrolled in kindergarten through twelfth grade on or before the effective date of this section if such child presented a statement, prior to the effective date of this section, from the parents or guardian of such child that such immunization is contrary to the religious beliefs of such child or the parents or guardian of such child, and such statement was acknowledged [as set forth in the statue].” (Emphasis added).

The intent of this provision is to permit certain students who are already attending a public school or non-public school in grades kindergarten through twelve with a religious exemption to continue to attend school without complying with the vaccination requirements. 

There is some question, however, about students, like Petey in Nutmeg, who are currently in preschool.  To be entitled to the exemption, such students must have been enrolled in school prior to April 28, 2021 and their parents must have presented a duly-acknowledged statement of their religious objection before that date.  The question in such cases is whether children so registered are considered “enrolled” in school prior to the effective date of Public Act 21-6.  Where such preschool children are registered but not yet attending kindergarten, it appears that such children are not “enrolled” and accordingly are not eligible to attend school as “legacy” students exempt from the vaccination requirements.  As of this writing, we await further guidance on this point.  Irrespective of how “enrollment” is interpreted, however, the exemption is not available to such students unless parents also presented the duly-acknowledged statement of religious objection prior to April 28, 2021.

The law includes another provision affecting preschool students.  If a student is currently attending preschool exempt from the vaccination requirements based on a religious objection that was duly acknowledged, that student may move on to kindergarten without complying with the vaccination requirement until either (1) the later of September 1, 2022 or within fourteen days of transferring to a Connecticut school subject to the vaccination requirements or (2) according to an alternative vaccination schedule if the student presents a certificate from a physician, a physician assistant, advanced practice registered nurse, or local health agency stating that initial immunizations have been given to such student and additional immunizations are in process as recommended by those medical professionals, provided the student must be fully vaccinated according to the alternative vaccination schedule.

Regardless of how “enrollment” is ultimately resolved, the Nutmeg Board of Education must understand its obligations when a parent or guardian makes a request for a school accommodations hearing.  When a school district denies school accommodations to a child (which can include disputes over transportation or even bus stops), the parent or guardian has the right to request that the board of education conduct a hearing over whether the child should be provided school accommodations.  When the board of education conducts such a hearing, due process requires that its members sit as impartial judges to hear the evidence and make a decision.  Accordingly, the board members should not have prior discussion of the case among themselves or with the superintendent.  Rather, they must make their decision based on the evidence presented at the hearing.  If the board members need legal advice on the student’s legal rights, they should request and receive such advice.  However, given the board member’s obligation to be impartial, legal advice on eligibility for school privileges should come from a lawyer other than the lawyer who is advising the superintendent on the matter.