A tiny school district in California is setting up a separate in-person instructional program for its unvaccinated students, courting a showdown with the biggest state in the country and a tussle over the legal limits of how schools can respond to the COVID-19 crisis.
The Alpine Union school district鈥檚 plan, the first of its kind in the country, is designed to save its unvaccinated students from losing face-to-face instruction when the state鈥檚 K-12 vaccine mandate鈥攁lso the only one of its kind in the nation鈥攇oes into effect, for some grades as early as July.
In this small K-8 district, in the foothills east of San Diego, where 鈥渃hoice鈥� is a rallying cry that dominates the COVID vaccine debate, district leaders estimate that 40 percent or more of the 1,500 students aren鈥檛 inoculated against the virus.
鈥淚鈥檓 not opposed to vaccines. I got the vaccine and the booster, too,鈥� said Alpine鈥檚 superintendent, Rich Newman. 鈥淏ut I feel I should represent my community, and overwhelmingly, they鈥檙e believers in choice. I don鈥檛 want some students falling through the cracks because of the state鈥檚 vaccine mandate.鈥�
Alpine鈥檚 dilemma reflects a question district leaders across the country are facing, said Dan Domenech, the executive director of AASA, the School Superintendents鈥� Association: What kind of education should they provide for children whose parents won鈥檛 get them vaccinated?
California is the to the longstanding list of other vaccinations required for in-person school attendance, such as measles, mumps and rubella. The mandate will take effect in phases, when federal officials grant full approval for the vaccine鈥檚 use in each age group. Currently, COVID vaccines are fully approved only for those 16 and older. Younger children can receive them under an emergency-use authorization.
Once California鈥檚 requirement kicks in, families of unvaccinated students鈥攐ther than those with state-approved exemptions鈥攚ill have three choices: private school, home schooling, or 鈥渋ndependent study,鈥� a learn-from-home option offered by the state.
The predicament Alpine faces is likely to arise nationwide. Louisiana announced this week that for school attendance. Five districts in California already require it. And at least a dozen districts around the country require the vaccine for some students, typically student-athletes.
Some districts have conducted short-lived experiments aimed at serving both masked and unmasked students by teaching them in separate rooms, but they quickly abandoned those practices. No district has yet tried a separate program for unvaccinated students.
In-person program for unvaccinated students could violate law
The California governor鈥檚 office signaled that any district that sets up separate in-person instruction for unvaccinated students would run afoul of its orders.
鈥淚f you do in-person instruction, you need to abide by the vaccine mandate,鈥� said Alex Stack, a spokesman for Gov. Gavin Newsom.
County health departments will be tasked with enforcing the vaccine mandate, Stack said. Legal experts said the state also has the authority to seek a court order to shut down school programs that violate state law.
鈥淚 don鈥檛 think California will allow a school district to create a separate program for unvaccinated students. If it violates state law, a judge is going to shut that down,鈥� said James Hodge, a professor of law at Arizona State University and director of its Center for Public Health Law.
Courts have upheld challenges to vaccine mandates in higher education, and last weekend marked a key ruling for such requirements in K-12. On Dec. 5, the U.S. 9th Circuit Court of Appeals . Hodge said that would buttress other California districts that enact such rules.
Parents drove creation of new program
Alpine鈥檚 planned 鈥渃hoice academy鈥� is drawing both applause and condemnation locally. The became a hotbed of disagreement when Newman, the superintendent, posted a letter announcing the academy on Nov. 22. He returned to work after Thanksgiving to find voicemails accusing him of being a Nazi and a segregationist.
But many parents and district staff members are cheering the academy. They commend the district for respecting all viewpoints in this predominantly conservative community and trying to ensure unvaccinated students get a quality education.
鈥淚鈥檓 grateful we have a superintendent who wants to work alongside us parents instead of against us,鈥� said Jalissa Hukee, whose two children have all their required vaccines except COVID. 鈥淲ithout the academy, I鈥檇 pull my kids out and home-school.鈥�
Hukee is one of a group of parents helping Newman design the program. This fall, after Newsom announced the coming vaccine mandate, Newman invited their ideas. The parents gathered around a friend鈥檚 kitchen table and brainstormed an early outline.
There is still a lot to figure out. The district is working with its teachers鈥� and classified employees鈥� unions on how to staff the programs, and what safety protocols will be required. They don鈥檛 yet know whether they鈥檒l mix the age groups, one-room-schoolhouse style, or divvy children up into grade bands. They have to find ways to preserve the district鈥檚 vaunted engineering and dual-language programs, and how to meet the needs of special education students in the new, separate setting.
Home schooling isn鈥檛 an option for some working parents
And they鈥檙e still looking for a good location: parents have eagerly offered living rooms and garages, but Newman is leaning toward keeping students together in a larger space, such as a community center or office building. But even an unfinished plan is finding a hero鈥檚 welcome among some parents.
鈥淭hank God for the academy, because we can鈥檛 home-school,鈥� said Jessica Dombroski, whose four children attend Alpine schools while she runs a dog-grooming business and her husband works as a paramedic. She and her children are unvaccinated, and she鈥檚 been scrambling to create a home-school pod with other families. Instead, she鈥檒l opt for the choice academy.
Beacon Grayson has vaccinated her two daughters against COVID, and is eager for the state vaccine mandate to go into effect. But she鈥檚 happy the district is working to provide an alternative for parents who have not vaccinated their children.
鈥淭he district is doing what it can to straddle the divide between parents like me and parents who are 鈥榥o vaccine,鈥欌�� she said. 鈥淚t鈥檚 caught in a really tough situation.鈥�
Nearly 90 percent of Alpine鈥檚 staff is vaccinated for COVID; the rest undergo weekly testing. Yvette Maier, the district鈥檚 director of human resources, said many teachers have expressed an interest in teaching in the new academy, especially those who are unvaccinated. The district aims to iron out all details of the program by June, when families begin registering for fall 2021, she said.
New program is 鈥榓sking for a COVID outbreak鈥�
Lauren Weinberg, a 5th grade teacher who鈥檚 in her second year in Alpine, thinks the new program is an 鈥渋ncredibly unsafe鈥� option, both for students and staff members.
鈥淧utting a bunch of unvaccinated people in one area, it鈥檚 asking for a COVID outbreak,鈥� she said. 鈥淵ou won鈥檛 catch me stepping foot on that campus.鈥�
Weinberg worries that the choice academy will enable more families to forgo vaccination. But for others, that鈥檚 precisely the point.
鈥淲ithout this academy, a lot of families will be forced to get the vaccine when they don鈥檛 want to,鈥� said Erica Lyle, the dean of students at Alpine鈥檚 Shadow Hills Elementary. 鈥淲e want to let families make their own choices.鈥�
Districts risk legal challenges if they set up such programs, however, legal experts said.
In addition to possible shutdown by the state or by county health departments, they could face lawsuits for breaching a key legal standard: their duties to protect students from foreseeable danger, and to provide a safe and healthy workplace for staff, said Meredith Karasch, senior counsel at Liebert Cassidy Whitmore, a Los Angeles-based law firm that advises school districts.
鈥淚鈥檇 tell districts to think very carefully about the issues before putting something like this into place,鈥� she said.
