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Confessions of a vaxxer | Marvin Zuker

Thursday, August 19, 2021 @ 8:44 AM | By Marvin Zuker

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Marvin Zuker
More than seven months ago I wrote an opinion piece for The Lawyer’s Daily, dated Jan. 7, 2021, titled “Essential workers, educators and the vaccine.”

At this time it is with great reluctance that I confess the truth. I am not so much an antiventilationist or lacking support for Ontario’s Ministry of Education, whose slogan is ventilation first, as the reality of again, now more than ever, prioritizing vaccination, vaccination, vaccination of our teachers and others.

The Centers for Disease Control (CDC) states that “Vaccination is the leading public health prevention strategy to end the COVID-19 pandemic. Promoting vaccination can help our schools safely return to in-person learning as well as extracurricular activities and sports.”

Also, of course, many of our schools provide education for children under 12 who are currently not eligible for vaccination. We must provide multiple prevention strategies together and consistently to protect our students, teachers, staff, workers and other members of their families.

The CDC and the American Academy of Pediatrics recommend universal indoor masking literally for all, regardless of their vaccination status and community transmission level.

At a time when the Ontario Ministry of Education is more than actively, if not obsessively, promoting math, those hardest hurt by academic disruptions during the pandemic are children up to 8 years of age. A very recent U.S. report collected data from 16 national studies, 45 state studies and 15 local studies.

Additionally, given the crucial fact that in Ontario junior kindergarten and senior kindergarten are not compulsory, not only are these children, if even registered, falling behind, typically it is the low-income children who will suffer the most. Arguably thousands and thousands of these kids never enrolled in any school during the pandemic. These grades must be made mandatory in terms of attendance or we will have lost a generation of young people.  

On Aug. 11, California became state No. 1 to require all teachers and staff in every school district to be vaccinated against COVID-19 or submit to regular testing. All staff, teachers, custodial staff, bus drivers and anyone else who works in schools are mandated. “We think this is the right thing to do, and we think this is a sustainable way to keeping our schools open and to address the No. 1 anxiety that parents like myself have … and that is knowing that the schools are doing everything in their power to keep our kids safe,” said Gov. Gavin Newsome. His order applies to all school workers in both public and private schools, and educators must be compliant by Oct. 15. California requires all students and staff to wear masks indoors.

The California Public Employment Relations Board (PERB) has recently ruled that the University of California system had the right to mandate the flu vaccine for all students and employees during the fall of 2020 without consulting employee unions. (See State of California Decision of the Public Employment Relations Board). The PERB decision sets a clear precedent for the university’s right to insist on vaccination for all its employees.

On Aug. 4, the Hawaii State Department of Education (HIDOE), Hawaii Administrative Rules, Title 11, Department of Health, Chapter 157, Examination and Immunization, mandated that all state and county workers, including public school workers, be vaccinated by Aug. 16 or get tested weekly. And all student-athletes, athletic staff and volunteers must be fully vaccinated by Sept. 24 to participate in school sanctioned athletic activities for the 2021-22 school year.

We cannot forget that these programs are a privilege, not a right. As in most cases students and adults can seek an exemption for religious or medical reasons with the appropriate documentation. In a different context, wearing a mask may well be a disability.

On Aug. 2, a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, in Chicago, in the case of Klaassen et al. and Trustees of Indiana University No. 21-2326, declined to issue an injunction while the students’ appeal moved forward. Circuit Judge Frank Hoover Easterbrook ruled that all students at Indiana University must be vaccinated against COVID-19 unless they are exempt for religious or medical reasons. Exempt students must wear masks and be tested for the disease twice a week.

Justice Easterbrook relied on Jacobson v. Massachusetts 197 U.S. 11 (1905). “People who do not want to be vaccinated may go elsewhere,” he wrote. So true. On Aug. 12, Justice Amy Coney Barrett of the U.S. Supreme Court turned down the students’ request for emergency relief without comment.

Italy has just introduced the legal obligation for all university students and personnel to show their Green Pass to be allowed to enter university premises and take part in various activities. Perhaps of more relevance is the fact that study abroad programs in Italy must comply with these new provisions. Foreign students must show appropriate vaccination evidence or take a (negative) test every 48 hours or so!

This is set out in Decreto Legge n. 105 of July 23, 2021, published on the Official Italian Gazette n. 175 of July 23, 2021. The Italian Ministry of Health issued a new specific “Ordinanza,” dated July 29, 2021, that deals with the requirements imposed on travellers from abroad, such as Canada, to be allowed to enter Italy.

Rhetorically and most importantly, what is required by the Ontario Ministry of Education of the thousands and thousands of international students coming here each year?

What is required by the Ontario Ministry of Health of these international students who will be living in boarding schools related to private and independent schools?

We have not seen what responsibilities, if any, will be placed, where you have a “guardian” put in charge of 10/20/30/40 international students, none of whom may have been vaccinated, including the guardian.

We seem to completely forget that many, many international students will not have had access to vaccines in their home countries before they come to Ontario. The global rollout of vaccines has been so uneven, a gap that will grow larger over time. Many African, Asian and Latin American countries have vaccinated less than two per cent of their population to date (some less than 0.1 per cent). Unvaccinated must mean severe restrictions placed on these students in any and all schools in Ontario.

The Education Act of Ontario, R.S.O. 1990, c.E.2 specifically addresses safety, inclusivity and school climate (see e.g. ss. 169.1 and 300.01). The purpose of the Act is to “provide students with the opportunity to realize their potential and develop into highly skilled, knowledgeable, caring citizens who contribute to society” (see s. O.1(2)).

We have lost so many of our young children over the last year. Are they going to come back?

Hyperdivisive discourse is contributing to a reluctance to mandate the COVID-19 vaccine. Ventilation is one, and only one, of many prevention strategies. Promoting vaccination should and must be the No. 1 strategy coming from our Ministry of Education.

This past week the two largest teachers’ unions in the U.S., the National Education Association and the American Federation of Teachers, announced their support for the vaccination of or testing for educators, especially given the highly contagious and spreading delta variant.

On top of everything else, the economic benefits of vaccinations are beyond dispute. Very recent federal survey data from the U.S. Census Bureau and the National Center for Health Statistics show that getting vaccinated correlates with immediate improvements in well-being.

Are we approaching a crisis in our failure to mandate vaccinations for all educators? Such failure may well lead to more and more disruptions instead of being able to continue to work together.

The science is clear. Vaccinations are an essential part of protection against COVID-19 and the future of education in Ontario.

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is associate professor at Ontario Institute for Studies in Education/University of Toronto, where he teaches education law. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.

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