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The CDC writes:

It is unethical and illegal to test someone who does not want to be tested, including students whose parents or guardians do not want them to be tested.

I presume its not talking about forcibly testing the student, but rather about not allowing the student in without being tested.

Towards the beginning of the article it says:

While these considerations were developed with public schools, including charter schools, in mind, private schools may also find these considerations useful.

My question is, under what law is it illegal to to not allow students into school unless they have a test and would that law apply to private schools?

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  • What jurisdiction? Commented Oct 16, 2020 at 4:17
  • I live in New York. However, the CDC wrote this nationally.
    – Eliyahu
    Commented Oct 16, 2020 at 4:18
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    I don't know about any law, but they can put pretty much anything in their contract or their respective internal rules. Commented Oct 16, 2020 at 6:12
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    Honestly, I would read your quote the other way: they're talking about telling someone "you can't leave this room until you submit to a test", or testing a child whose parents do not want them tested. Those would fall under laws like assault and/or unlawful confinement. It's not trying to say that it's illegal to tell a student or their parents "stay home if you're not going to get tested." Commented Oct 16, 2020 at 20:18
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    "I presume its not talking about forcibly testing the student, but rather about not allowing the student in without being tested." I don't see how you can read it that way. It's very clear that it's talking about whether or not you can test someone and is in no way talking about letting anyone into anything. It is weird to me that the document doesn't address any of the hard cases and sticks to the easy ones. Commented Oct 18, 2020 at 9:50

2 Answers 2

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First of all, even if it is not allowed to test them, you can also refuse to service someone untested - and that is not illegal discrimination, as "untested for COVID 19" is not a protected class.

Public Schools however are not companies in the normal way, and the CDC can only advise in the rulemaking of local legislators and executives. And in the current health crisis, the school board and health authorities can order things for the protection of others and this can be enough justification to exclude individuals or several people from groups. After all, being teste or not is clearly not a protected class under the Civil Rights Act, and neither is easily regarded as a form of first amendment speech - unlike a black armband (Tinker v. Des Moines Independent Community). Being untested is much more akin to being a person on a ship and then attempting to disembark in a quarantine zone - which was decided in Compagnie Francaise & Lousiana Board of Health (there are two of those btw). The majority opinion in the SCOTUS case (1902) writes (emphasis mine):

24 True it is that, in some of the cases relied on in the argument, it was held that a state law absolutely prohibiting the introduction, under all circumstances, of objects actually affected with [a contagious] disease, was valid because such objects were not legitimate commerce. But this implies no limitation on the power to regulate by health laws the subjects of legitimate commerce.

34 [A]ssuming that all the treaties relied on are applicable, we think it clearly results from their context that they were not intended to, and did not, deprive the government of the United States of those powers necessarily inhering in it and essential to the health and safety of its people.

Using a similar vein as in Compagnie Francaise, the public health interest might be enough for even a public school to only allow presence in the building with a test and otherwise demand online or remote learning (which isn't always an option) or even just suspend people that are not tested until such a time their presence is deemed safe.

A private school is vastly more free in rulemaking, and as even a public school can muster strict scrutiny regarding presence teaching, a private school surely will get away with it. But nothing can force a private school to suspend teaching, switching to online classes or demand to test, unless they like to or their accreditation hinges on it - and here religious schools come in: There are religious groups that to an extent of not allowing medical procedures on their members, including COVID-testing. Those schools could ban people from attending that are tested.


Endnote

Public Health Interest is a hammer that can be rather heavy. It can't be used to discriminate against HIV, as that doesn't spread from touch and sneeze, but it can be used to ban people from buildings that have Communicable Diseases. While nobody classed COVID 19 as such yet, having such an illness [Plague, Cholera, Botulism, and others] allows the government to isolate you under strict scrutiny or even has been used to quarantine whole areas in the past (see the Compagnie Francaise case). And as you see in the current pandemic, legislative bodies globally do dish out rules for schools and public places in short order, some of which include testing strategies, and ways to overwrite consent via a state order. Some are struck down: some of them on procedural grounds (e.g. wrong body), others on grounds of equality (e.g. religious bias).

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  • Thanks! Can you explain how this answers the first part of my question a little more clearly? - "under what law is it illegal to to not allow students into school unless they have a test?"
    – Eliyahu
    Commented Oct 18, 2020 at 5:18
  • As I tried to say: It isn't per se illegal to do that. Not-tested is not a protected class and it is not first amendment speech and to test or not to test. The school can't do tests, but it can exclude based on tests/no tests
    – Trish
    Commented Oct 18, 2020 at 8:50
  • @Eliyahu I think Compagnie Francaise II might be the correct case to quote here, even if it is from 1902.
    – Trish
    Commented Oct 18, 2020 at 9:39
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    "it's illegal to test someone who does not want to be tested," - that does not say it is illegal to exclude them based on the fact that they did not test.
    – Trish
    Commented Oct 18, 2020 at 16:17
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    @Eliyahu they are not just talking about (physical) force, but say this scenario: Johnny starts sneezing at school. They send him to an empty room. Someone comes in and tests him. No good- they can call his parents and tell them to come get him, they can offer a test but not just do it. They cannot refuse to release him to his parents without the test. They hear the next day Johnny is positive, so they go into his class and test everyone else. No good- They can notify all the parents of the exposure and offer a test, but can’t just do it. Obvious? People are well meaning but worried.
    – Damila
    Commented Oct 19, 2020 at 3:37
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Wow, am I late to this party! I’ve seen this very question asked, screamed, fought over, attacked, picketed, litigated, and appealed. Trish pretty much answered it. There aren’t any laws saying you can’t require a test to enter PRIVATE property. (The original question was regarding a private school, not a public school.) I’m in Texas, and we’ve had folks sucker-punch Walmart greeters who asked them to wear a mask at the initial height of COVID. (I’m not saying that with any sense of pride.) You don’t get to “have it your way” on someone else’s private property, but you can on your OWN private property.

So a private school can require vaccinations, uniform dress codes, hair length, masks, testing, and make you walk like a duck whenever you’re in the hallways if they wanted. Personally, I believe there are conflicting legal precedents regarding protected classes and how this would play out if litigated today. See Supreme Court interpretation of Title VII, June 16, 2020 compared to Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, June 4, 2018. If you provide a service to the public, you might even be on shaky ground depending in which state you reside. Texas (yep, us again!) has an Abbott executive order that says private businesses on their own property can’t require proof of vaccination, and our State Supreme Court upheld it, because that could discriminate against someone’s sincerely held religious beliefs. It’s been an interesting couple of years. Unfortunately, too many of people use physical violence as the first step to defend what they think is “right” regarding vaccines, masks, testing, whatever. It’s a shame we can’t just have a rousing debate anymore. (Oops, sorry. That last statement was totally opinion.)

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    – Community Bot
    Commented Aug 23, 2022 at 21:26
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    An answer at SE is not an appropriate place to discuss your personal opinions or efforts to persuade people. The question is what the law says.
    – ohwilleke
    Commented Aug 24, 2022 at 5:48
  • Welcome to Law.SE. Are you able to edit this to focus it on the law?
    – Pat W.
    Commented Aug 24, 2022 at 17:54

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