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Yet the , plaintiffs argued that the decision whether to place children with relatives—as opposed to placing them with unrelated families—should be subject to strict scrutiny. The court rejected the application of strict scrutiny, reasoning that foster care placement is not an immutable trait.
Opponents of the bill and critics of vaccines fought (and continue to fight) vigorously against SB 277, sometimes with disturbing tactics. One recurrent theme was that the bill is unconstitutional.
This Essay does not address the claim that SB 277 violates the federal constitution, as this subject has been thoroughly discussed elsewhere, and our jurisprudence is consistent in upholding school immunization requirements with no nonmedical exemptions. Instead, I focus on the claim that the bill is unconstitutional under state law because it violates a child’s right to access public education, which has been acknowledged by the California Supreme Court to be a fundamental societal interest. Part I explains why has never been used to limit the state’s ability to ensure the health and safety of children in schools; these are a precondition to education, and our jurisprudence treats them as such.
In other words, informed refusal laws do not sufficiently increase vaccination rates. Under SB 277, children will only be able to attend school or daycare, public or private, if they either receive the immunizations required by law or obtain a medical exemption from the requirement from a licensed physician—meaning only MDs and DOs. Children may also be conditionally accepted into a school or daycare program if they are in the process of completing a series of vaccinations.
In other words, if parents wish to leave their children unvaccinated, absent an acknowledged medical reason to do so, they cannot send them to school or daycare. It should be remembered that SB 277 does not remove medical exemptions.
Fundamental interests are not absolute, and not every classification or distinction applied to them is problematic.
As explained in Darces, although advocating a more flexible approach to equal protection analysis, nevertheless took pains to connect the classification with more traditional indicia of a suspect class—national origin and ancestry.
The court emphasized that in instances of wealth-based discrimination, courts traditionally evaluate the existence of a fundamental interest, explaining that “[u]ntil the present time wealth classifications have been invalidated only in conjunction with a limited number of fundamental interests—rights of defendants in criminal cases . But it is important to remember that the decision was made in the context of examining whether wealth was a suspect classification that justified applying strict scrutiny to the state’s school financing system. 2, § 120335(f), section does not apply to a pupil in a home-based private school or a pupil who is enrolled in an independent study program pursuant to Article 5.5 .
In other words, the emphasis on education was raised not in the abstract—not to provide for strict scrutiny every time the state attempts to regulate schools—but to prevent the state from limiting access to education based on a suspect classification.
Rather, they are choosing between following the health and safety rules the state has adopted and exercising their right to reject those rules.
From every angle examined, SB 277 does not violate California’s Constitution as interpreted in .