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State leaders say they don’t know how many public school employees have been vaccinated against COVID-19.

Only about 29% of all 12-15-year-old public, private and home-schooled students statewide are fully vaccinated — the lowest rate among all age groups reported on the West Virginia Department of Health and Human Resources website. Just 39% of 16-20-year-olds are fully vaccinated.

While leaders of school districts and agencies in other states have begun requiring these inoculations, West Virginia’s preK-12 public schools aren’t mandating COVID-19 vaccinations for students or staff, and West Virginia’s governor isn’t mandating face masks in schools, much less vaccines.

Whether other agencies could step into that void and mandate inoculation hasn’t been tested in courts amid the pandemic. That’s partly because no public agency in West Virginia has attempted a mandate.

The Bowles Rice law firm, which often represents county school systems, said it hasn’t been asked for a legal opinion on whether county boards of education or the state Board of Education could require vaccines.

A state Department of Education spokeswoman said late last month that the department didn’t know of any “state law or school board policy which explicitly allows or explicitly prohibits” county school boards from mandating these vaccinations.

But earlier this month, the department’s general counsel, Heather Hutchens, said she believes neither a county school board, nor the powerful state Board of Education, could mandate them for students or staff.

“I think these are issues of first impression in a lot of ways,” Hutchens said. “I don’t know that there’s going to be one thing in law that specifically says, ‘These are the people that do this and these are the people that don’t.’”

“Because they are statutorily created bodies, county boards of education can only perform those acts which they are statutorily enabled to perform,” she wrote in a subsequent email. Statutorily means created by state statute, i.e. state law or Code.

State laws passed by legislators decades ago required students to be inoculated against certain diseases. The current required list includes chickenpox, polio and others.

Current lawmakers have not added COVID-19 to that list for any students or employees, despite the U.S. Food and Drug Administration fully approving the Pfizer-BioNTech vaccine for ages 16-and-up a month ago.

As for the West Virginia Board of Education (WVBE) — whose power, unlike that of county school boards, is written into the state constitution — Hutchens wrote that “while the authority of the WVBE is broad, I do not believe it is so expansive that the WVBE can require the administration of a vaccine.”

West Virginia University law professor Joshua Weishart wrote in an email that “I agree that, at least when it comes to requiring children to be vaccinated, the Commissioner sets the immunization schedule.”

He was referring to the state health officer, who is currently Dr. Ayne Amjad. She’s part of the Department of Health and Human Resources. But that deference to Amjad that Weishart cited is written in a WVBE policy.

That means the WVBE could change that policy, if those board members wanted. Unlike other top state leaders, WVBE members, after their state Senate confirmations, can’t be removed by the governor over policy disagreements. And WVBE policies don’t require state lawmakers to sign off.

Also, regarding the WVBE requiring public school employees, rather than students, to be vaccinated, Weishart said he’s unaware of any requirement that there must first be a Department of Health and Human Resources regulation.

Weishart, who specializes in education law and policy, noted the state Supreme Court “has emphasized repeatedly that the state board is vested with broad constitutional authority to supervise public schools and to take ‘whatever steps are necessary to fulfill its obligation’ to ensure children receive a constitutionally adequate and equitable education.”

And the pandemic is impeding that education, he noted.

He also questioned whether county school boards also couldn’t require their employees to be vaccinated, if the state board won’t act.

“The real question is whether there is implied authority to impose a vaccination requirement,” he wrote.

He cited multiple parts of state law that may imply that power. One says county boards “have the authority to take any other action necessary to protect the pupils from infectious diseases, including the authority to require from all school personnel employed in their county, certificates of good health and of physical fitness.”

This month, Republican Attorney General Patrick Morrisey released a written opinion on, among other things, whether it would be legal to require state employees to be vaccinated.

The Republican leaders of the Senate and House of Delegates had requested an opinion from him. The opinion isn’t legally binding.

Morrisey’s opinion was simultaneously that:

  • a mandate for workers would be illegal if courts saw things according to his interpretation, and;
  • state lawmakers should act anyway to limit or ban vaccine mandates.

“Mandates and passport requirements imposed by counties, municipalities and other public actors would give rise to the same legal concerns as a mandate or passport requirement imposed at the statewide level,” he wrote.

The attorney general cited a 1905 U.S. Supreme Court case, Jacobson v. Massachusetts, as the most powerful precedent against his position.

“Since Jacobson, courts have employed a broad understanding of the case to hold that state-affiliated entities may require vaccines,” Morrisey’s opinion says. “Most often, these cases involved student challenges to compulsory vaccination as a condition for attending school.”

But Morrisey also cited other rulings that he said indicate modern courts may go in a different direction.

“A mandate that all state employees obtain a COVID-19 vaccine as a condition of employment offends the constitutional right to bodily integrity and personal medical decision-making,” he wrote.

Chris Carder, an Ohio County school board member and president of the West Virginia School Board Association, said she doesn’t think county school boards have the authority to require the vaccines.

“I don’t have any legal or otherwise opinion on it, it’s just my opinion,” she said. “It’s hard enough to mandate masks, believe me.”

Ryan Quinn covers education. He can be reached at 304-348-1254 or ryan.quinn@hdmediallc.com. Follow @RyanEQuinn on Twitter.

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