Note: Sam and Arnie are names used for the purpose of argument, and “the school” refers to an arbitrary school, not FLHS.

Sam, an unvaccinated student, has taken issue with the division of students into different wings of the school based on their vaccination status, as well as the prohibition on sports participation for unvaccinated students, and foresees this negatively impacting her future. Another student, Arnie, who has recovered from a recent chronic illness, has been required by the school to learn remotely so that the school may fulfill the district’s obligation to maintain a safe environment, against his wish to remain in school. The complex nature of these issues requires an examination of the statutes and constitutional precedents which surround them.

While Sam has made the conscious decision not to receive the vaccine, Arnie’s development of an illness was involuntary. Furthermore, Sam’s status as unvaccinated could cause harm to others, such as students or faculty with health conditions like Arnie’s. However, Arnie’s recovery, coupled with his vaccination status, indicate that he does not pose a health threat to other students, and justify accommodations. Arnie’s situation does not have the potential to harm others, while Sam’s does. Additionally, those without the Covid-19 vaccine are nearly 3 times as likely to be infected, but it is still possible for vaccinated people to be infected. Thus the utmost caution must be taken wherever necessary for protecting the many.

The 14th Amendment to the United States Constitution reads, in part, “No State shall make or enforce any law which shall… deny to any person within its jurisdiction the equal protection of the laws.” This clause reflects the basic principle which protects Arnie’s right to attend school in-person. The conditionality of rights for the maintenance of safety justifies the school’s decision to separate unvaccinated students like Sam from vaccinated students.

In Jacobson v. Massachusetts, the Supreme Court held that the Tenth Amendment’s reservation of policing powers to the states includes the regulation of public health, and stated that the rights of the people were not absolute, as the government has a duty “to keep in view the… safety of the many.” The Supreme Court decision in Hazelwood v. Kuhlmeier contends that student speech, a civil liberty, may be limited if its message is inconsistent with the pedagogical interests of the school. In conjunction with the precedent set by Hazelwood for an even greater restriction of civil liberties in schools, Jacobson may be understood to guide schools in the reasonable limitation of these liberties for the legitimate public health interests of the school, separating vaccinated and unvaccinated students. The expectation that students are guaranteed a safe environment in which to learn is essential, especially during the Covid-19 pandemic. In Connecticut, the combination of these precedents are supported by the Department of Public Health’s policies requiring students to be vaccinated for certain contagious diseases, which justifies the similarly restrictive yet protective action of separating the students, rather than requiring vaccination.

The critical standard that must be considered in the evaluation of such an issue is that of intermediate scrutiny. Korematsu v. United States set the initial precedent for the “strict scrutiny” standard, which requires the courts to consider restrictions of civil liberties’ relations to race in  comparison to an actual government interest. Although this case is largely considered to have been wrongly decided because of its racist subtext, its premise can be adopted with contemporary standards to weigh the importance of a government’s intent over its intrusion of individual freedom. Craig v. Boren, which set the precedent for intermediate scrutiny, articulated that a law must further a government interest, with a lower standard of scrutiny for the restriction of civil liberties. Protecting students and staff from disease is a legitimate government interest which passes the intermediate scrutiny test in its limitation of students’ access to the whole school and play sports.

Brown v. Board of Education determined that “separate but equal is inherently unequal.” This principle can be applied to the separation of students at Sam’s school when taken in context. This case referred to the entirely separate facilities, resources, and administrators for black and white students. Coupled with the less strict standard of scrutiny for Sam’s situation, as described previously, the division of students within a single building is not a violation, as students have access to the same facilities, resources and administrators, showing that they are not separated in the same unfair manner as black students were prior to Brown which were grounds for its ruling.

Arnie’s limitation to virtual schooling is a direct violation of the precedent set in Brown v. Board of Education that separation in this regard can never truly be equal. Once again applying intermediate scrutiny, Arnie’s situation violates the non-racial element of the decision, as his educational environment would be entirely different from the one of all other students, in both wings of the school.

This is the exact reason for the passage of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. The Title II states that “no qualified individual with a disability shall… be excluded from participation in” any public services, including education. A “disabled” person is defined by this Act as having a “physical or mental impairment… or being regarded as having such an impairment.” Crucial to understand is that the school regards Arnie as having such an impairment, and therefore, he qualifies as impaired under this definition. Therefore, it is against federal law for the school to deprive Arnie of access to the public school he is enrolled at, even considering his perceived medical condition. Section 504 of the Rehabilitation Act of 1973 furthers this point by saying that schools must meet disabled students’ “individual needs to the same extent that the needs of nondisabled students are met.” It is thus clear that Arnie is not only entitled to equal educational opportunities but in fact may be afforded additional resources to learn in the same manner as his peers.

Arnie’s right to attend school in person is also supported by the Supreme Court’s decision in Griswold v. Connecticut. Justice Douglass determined in this case that the privacy of marital relations was granted via the 1st, 3rd, 4th and 9th amendments and Justice Harlan’s concurring opinion explained that the 14th amendment grants a general right to privacy, meaning a freedom to make choices when they don’t not affect others. This applies to the school’s violation of Arnie’s civil liberties in that his decision of whether or not to go to school, considering his perceived medical situation, is up to him since it won’t affect anyone else. The school’s concerns of liability are thus insufficient, but Arnie would also weaken potential grounds for a liability lawsuit.

The division of students by vaccination status for school and sports should be maintained. This is grounded in the fact that it is constitutionally permissible and that despite students’ vaccination status being a personal choice, it could clearly cause harm to others. However, in so doing, the school must take immense care to see that all students receive equal access to resources, that facilities are shared appropriately, and that a return to the normalcy of one cohesive school be returned to as soon as it is deemed safe. Considering Arnie’s right to equal treatment before the law afforded, the privacy which he is entitled to, and the fact that his condition was not his choice, he should be promptly offered the chance to attend school in person. He should also be provided with any and all additional resources necessary for him to be successful as a student. As the School Board progresses through the Covid-19 pandemic, it should be mindful of the appropriate constitutional balance of students’ individual rights and the maintenance of safety in the school environment, as well as Connecticut policy which guides them in vaccination, mask-wearing, testing and other safety measures.