Can Private School Students Avoid Vaccination?
The Ontario Government gives private schools significant freedom to operate as they like. But, can parents who do not want their children vaccinated send their children to private school to avoid vaccines?
The Legal Requirement For Student Vaccination
Parents who do not want their children vaccinated can run into troubles with having them attend school. Ontario’s Immunization of School Pupils Act requires that students attending any school in Ontario be immunized against diphtheria, measles, mumps, poliomyelitis, rubella, tetanus, meningococcal disease, pertussis and varicella. (COVID-19 is not on the list.) Students can only be excused from this requirement if school has either:
- a Statement of Medical Exemption that a doctor or nurse practitioner has signed. The document sets out his or her professional opinion as to why vaccination is medically unnecessary or contraindicated for the particular student; OR
- a Statement of Conscience or Religious Belief that a parent or legal guardian swears or solemnly affirms before a commissioner of oaths. That document states that vaccination is against the parents’ sincerely held convictions based on religion or conscience. It also must set out which particular vaccination offends the parent’s beliefs. Finally, in the documents the parents must acknowledge the serious risk to both their own child and other people of not having a child vaccinated.
Section 12 of the Immunization of School Pupils Act authorizes a medical officer of health to make an order requiring the person operating a school to suspend a student for up to 20 days. The medical officer of health makes such an order when he or she not have a record of the student having received the required vaccinations. In practice, this means the Department of Public Health sends a list of students with incomplete immunization records to the school board. The School Board sends that to the principal. If the parents do not address the problem, the principal suspends the student for up to 20 days. Under the Education Act any forced absence from school for more than 20 days is an expulsion. However, when given the order from Public Health, a principal could repeatedly suspend a student for up to 20 days.
Private Schools Can Do Almost Anything They Want
Ontario’s education system is set up, deliberately, so that private schools have few requirements to meet or rules to follow. There are almost no standards that private schools have to follow unless the school is a secondary school that wants to grant credits towards an Ontario Secondary School Diploma. The standard that does apply to private schools is regarding the response to concussions. Almost all of the Education Act does not apply to private schools. In choosing a private education, parents get to choose just about every aspect of their child’s education. They can pick a school with the curriculum, teaching style, discipline, approach to bullying or other policies that the parents like. Private schools can be set up to reflect almost any parents’ value. The government interferes very little with private schools.
However, private schools do have to follow public health orders regarding the immunization of students. That is one of the very few areas where a private school has to follow government directions. Some online sources suggest otherwise. They say there is no authority for a private school principal to suspend a student for not being vaccinated. That opinion is wrong. An explanation of Ontario Law follows.
Private Schools Do Have to Comply with Public Health Orders Regarding Vaccination of Students
The definition of “school” in section 1 of the Immunization of School Pupil’s Act explicitly includes “private school.” The legislation applies to private schools. Nothing exempts private schools from any part of that legislation. The provisions of the Act, set out above, enable a Medical Officer of Health to force a principal to suspend unvaccinated students who do not have valid exemptions.
Being unvaccinated is not one of the grounds for suspending a student from school that are set out in section 306 of the Education Act. However, the discipline provisions of the Education Act do not apply to private schools.
The Education Act defines “school” to include all publicly funded schools. It has a separate definition for “private school”. Unless any section of the Act specifically makes reference to a private school, it does not apply to private schools. The term “private school” does not appear in any section of the Education Act related to “Behaviour, Discipline and Safety.” None of that applies to private schools.
Ontario leaves almost all the “rules” for private schools up to the school’s contract with the parents. That contract governs almost every aspect of a private school education. Many parents just sign off on that contract quickly. However, lawyers will always advise anyone to read a contract before signing it. That is more true when the contract relates to children. Parents should make sure that their children are getting what they need – and what the parents expect. The contract with the private school sets out the standards that the school has to follow. It lets the parents know what they can expect from the private school. The contract also sets out the rules for students, parents and faculty.
The contract with the private school sets out when and how the school can suspend, expel or refuse to readmit a student. Many private schools have a term that essentially says they can kick out any student at any time for any reason and the school does not have to provide a tuition refund. Others have a term that says the school can “require a student to leave if, in the opinion of the head of the school, doing so is in the child’s best interest. In such circumstances, the school is not required to return the tuition paid.” That essentially means the same thing. Where the contract with the school has that type of term, the contract allows the principal to “kick out” a student for not being immunized. Principals likely will not think twice about doing so when faced with a public health order.
Considerations When a Private School Student Is Kicked Out For Being Unvaccinated
Where the contract with the school does not, in some way, authorize the school to refuse entry to an unvaccinated student. the parents may have legal remedies. Those remedies may be against the school for breach of contract. In the event that parents have to withdraw their child for homeschooling to maintain the child’s unvaccinated status, they should have an education lawyer review the contract. If the terms of the contract are not as set out above, the parents may be able to get a refund.
Regardless of what the contract says, schools cannot kick out a student for reasons that violate the Human Rights Code. Section one of the “Code” prohibits discrimination based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. Vaccination status is not a prohibited ground for discrimination. All schools, private or public, can discriminate based on vaccination status.
However, the Code does say private cannot require a student to be vaccinated if it goes against the student’s religious beliefs (“creed”), or the student has a medical condition that makes vaccination contraindicated or dangerous. That is why the Immunization of School Pupils Act provides exemptions on those grounds. The Human Rights Commission has found that vaccination requirements do not otherwise offend a person’s human rights.
Parents of unvaccinated students have few options when their private school must comply with a Public Health Order to suspend unvaccinated students.
Should Parents of Unvaccinated Students Look to Public Schools for Acceptance?
As government institutions, publicly funded schools strive to accommodate and accept everyone. That is a big reason many parents chose private schools: so their children are not subjected to that value system. However, vaccination status is not an area where public school boards show tolerance.
In public schools there are often children who are medically fragile, immunocompromised, or for medical reasons cannot be vaccinated. The presence of unvaccinated students can put those students at risk. Public schools cannot refuse to admit a student with such conditions on the basis that school poses a high a risk to the student’s health. That would violate the Human Rights Code prohibition on discrimination based on disability. Even putting a susceptible student at risk by attending school in the presence of unvaccinated students would violate the Code. Schools must provide a safe learning environment for all students. They cannot deny that to any student for any reason that violated the Human Rights Code.
Vaccination status is not one of the listed grounds for which a principal can suspend a student under section 306 of the Education Act. However, the last listed ground under that section is “any other activity that is an activity for which a principal may suspend a pupil under a policy of the board”. Every Ontario School Board has a policy regarding vaccination. Almost all of them require proof of vaccination before parents can enroll the child in school. Consequently, s. 306(1)7.of the Education Act permits a principal to suspend a student for not being vaccinated.
Public School principals will follow Public Health Orders to suspend unvaccinated students.
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