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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? – BlueDogRanch Oct 16 '20 at 4:17
  • I live in New York. However, the CDC wrote this nationally. – Eliyahu Oct 16 '20 at 4:18
  • I don't know about any law, but they can put pretty much anything in their contract or their respective internal rules. – Martin Dimitrov Oct 16 '20 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." – Michael Seifert Oct 16 '20 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. – David Schwartz Oct 18 '20 at 9:50
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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 Oct 18 '20 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 Oct 18 '20 at 8:50
  • @Eliyahu I think Compagnie Francaise II might be the correct case to quote here, even if it is from 1902. – Trish Oct 18 '20 at 9:39
  • So was the CDC wrong when it said that it was illegal? – Eliyahu Oct 18 '20 at 15:56
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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 Oct 19 '20 at 3:37

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