According to the law: what USD 383 can and cannot do in relation to COVID-19

Kris Long, Print Editor-in-Chief

As the COVID-19 pandemic wears on, USD 383 has been forced to address the crisis. For some, the rules like universal masking go too far, for others, not requiring vaccination doesn’t go far enough. But, lost in translation on both sides of the issue are the laws in Kansas restricting what USD 383 can and cannot do.


Can USD 383 go online or hybrid this year?

Not beyond 40 hours, even for individual students in most circumstances. The Kansas legislature passed a bill this summer that essentially banned schools from going online, meaning that is no longer an option in Manhattan High’s pandemic response plan. According to the Kansas Legislature’s summary of the bill, it “provides that no school district, beginning in school year 2022, shall provide or offer more than 40 hours of remote learning to any student enrolled in the school district.” It does provide an exception for students “when the student cannot reasonably attend in person due to illness, injury, or other extraordinary circumstance.” These exceptions are notable because while it does allow that individual students absent because they have COVID-19, which would fall under illness, receive remote instruction for more than 40 hours, it does not explicitly provide an exception for unvaccinated students quarantining due to close contact with a positive case, as they are required to do under USD 383’s Pandemic Response Plan. There is an application for a whole-district waiver to this law, but it is explicitly “due to disaster, conditions resulting from widespread or severe property damage caused by the disaster, or other condition restricting the operation of the school for an inordinate period of time and a determination by the State Board.” It is assumed, as the law was passed to prevent schools from going online due to COVID-19 concerns, that high COVID-19 levels in the community is not sufficient as a “condition restricting the operation of the school” to apply for a waiver. It is unclear whether the destruction of all bathrooms due to a TikTok challenge in a building is considered enough property damage to close the school.


Can USD 383 ask students or staff for vaccination information?

Not yet, but they already have access to some vaccine information. The HIPPA privacy rule does not cover student vaccination records because of the role of schooling in the spread of communicable disease. In other words, most vaccination records are not protected under HIPPA.  However, according to The United States Department of Health and Human Services website, the rule only permits health care providers to disclose immunization records to a school “that is required by State or other law to have such proof prior to admitting the student.” Currently, there is no Kansas state requirement that students be vaccinated for COVID-19, so the district cannot require students or parents to report COVID vaccine status to the school right now. It would be legal for Kansas to pass a law requiring the COVID-19 vaccine and therefore allowing the school to force students to provide that information. However, USD 383 nurses already have access to a list of students who are registered as vaccinated through the online vaccination database WebIZ. They use this information to stop the spread of COVID-19 by determining which students need to quarantine based on vaccination status if they have been exposed via close contact. Therefore, the district does not need to ask students for proof of vaccination as the lack of their WebIZ registration means the school considers them unvaccinated. While the district nurses have access to this information, superintendent Marvin Wade maintains that they will not search the database to categorize students as vaccinated and unvaccinated, they will continue to use the tool on a need-to-know basis for quarantine regulations.


Can USD 383 require staff to be vaccinated?

Probably not. According to the United States Equality Employment Commission, “The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.” This includes government employers. However, there is a provision in the Kansas budget bill passed in May that bans the use of vaccine passports for government employees. Kansas State University argued this summer that this provision makes a vaccine mandate impossible to enforce, which is their reasoning for not having one. Teachers are also employees of the state of Kansas, so it is likely that the state would have to require teacher vaccines, not USD 383. No Kansas school district has instituted a mandate at this time so no legal precedent exists. 


Can USD 383 require students 16+ to get vaccinated?

Probably not, and even if they could they likely aren’t going to in the near future. For previous vaccines, requirements were made at the state level school districts chose whether to enforce them or not. Currently, there is no Kansas COVID-19 vaccination requirement to attend school as there are for other vaccines.

“I just don’t see us going that direction,” Wade said. “That would take more of a state mandate… I would have a hard time recommending that. I believe in vaccinations, but there’s that aspect where there is overreach.”


Does full FDA approval impact USD 383’s ability to mandate vaccines?

No. There are no laws limiting vaccine requirements based upon emergency and full FDA approval. The legality of emergency use vaccine mandates (at this point in time that means 12-15 year-olds) is yet to be interpreted by the courts as a reason for a mandate to be illegal. 


Does Biden’s new mandate impact USD 383?

Not in a legal sense. The mandate Biden put in place impacts employees governed by the executive branch “including the White House and all federal agencies and members of the armed services” according to the New York Times, which accounts for about 4 million people. This impacts our significant number of students connected to Fort Riley. It also affects people who work for businesses who employ over 100 people — nearly ⅔ of the United States population —  who are governed by OSHA, because the mandate institutes requirements that these workers are either vaccinated or undergo weekly COVID-19 tests. It does not cover teachers and school staff, although Biden has urged states to require school staff are vaccinated, because education is a state-level issue. However, this mandate could set the ball rolling on more mandates and push the Kansas Department of Education to institute staff mandates.


Can the school require unvaccinated students and staff to follow different protocols than vaccinated students?

Yes. Vaccination status is not a protected class, so treating students differently based on their vaccination status is not discrimination. USD 383 already does this with contact tracing, students who are unvaccinated have different quarantine requirements than vaccinated ones. However, the inability to require students to provide vaccine information makes doing this in practice much more difficult. In addition, USD 383 decided in their Sept. 15 meeting that all mask mandates will be universal to avoid the problem of enforcing different mask rules for different people.