Calling it a “significant encroachment,” the Supreme Court on Thursday that would have impacted about a quarter of the nation’s school districts and potentially contributed to further staff shortages.

“Permitting [theĚýOccupational Safety and Health Administration]Ěýto regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization,” the opinionĚýsaid.

The court’s three left-leaning justices, StephenĚýBreyer, Sonia Sotomayor andĚýElena Kagan, dissented, arguing that the decision “stymies the federal government’s ability to counter the unparalleled threat that COVID–19 poses to our nation’s workers.”

As schools struggle to handle COVID-19 outbreaks amid staff shortages, the U.S. Supreme Court Friday heard a lawsuit over an employee vaccine mandate that some experts suggest could stretch districts even thinner.

In November, President Joe Biden that employees in organizations with at least 100 workers be vaccinated or wear a mask and test weekly. The requirement applies to about of the nation’s public school teachers and staff members, after factoring in the several states that have already imposed their own vaccine requirements for district employees.

The plaintiffs, 27 states and the National Federation of Independent Businesses, sued the U.S. Department of Labor and the Occupational Safety and Health Administration, arguing that the mandate — set to go into effect Monday — would create a “labor upheaval” and that many employees will quit rather than comply. The plaintiffs asked the court to block the mandate from being implemented, and a ruling on that could come as early as this weekend.

“This is going to cause a massive economic shift in this country,” said Scott Keller, representing the businesses. He and Ohio Solicitor General Ben Flowers argued that states and Congress — not OSHA — have the authority over public health regulations and that COVID-19 transmission is a risk everywhere, not just in the workplace.

Solicitor General Elizabeth Prelogar, speaking for the Biden administration, stressed that “grave danger exists” when people gather indoors together, which they are more likely to do at work.

The hearing took place as other challenges to vaccine mandates — for both educators and students — move through the legal system. The San Diego Union School District’s vaccine mandate is facing two challenges, one of which also awaits a response from the Supreme Court. And a federal judge in Louisiana last week blocked the Biden administration’s requirement that all Head Start staff be vaccinated by the end of January. 

Even the judge in that case expects the administration to appeal.

“This issue will certainly be decided by a higher court than this one,” Judge Terry Doughty, of the Western District of Louisiana, wrote in his ruling. A Trump appointee, he argued that the Biden administration has overstepped its authority and the mandate could make it difficult to keep classrooms fully staffed.

“If the executive branch is allowed to usurp the power of the legislative branch to make laws, then this country is no longer a democracy — it is a monarchy,” he wrote.

‘Thousands of people dying’

In Friday’s oral arguments on the OSHA case, members of the Supreme Court’s conservative majority also questioned the the legality of the agency’s mandate.

“This is something that the federal government has never done before,” said Chief Justice John Roberts.

But the more liberal justices focused on case and hospitalization rates.

“By this point, we know that the best way to prevent spread is for people to get vaccinated,” said Justice Elena Kagan. “We are still confronting thousands of people dying every time we look around.”
On Wednesday, there were more than 700,000 new cases in the U.S. and more than 1,500 deaths, according to the Centers for Disease Control and Prevention The , however, has declined since the Delta surge in September.

According to Nat Malkus, an education policy expert at the conservative American Enterprise Institute, the mandate would directly apply to districts in 26 states that have their own OSHA plans. But even in those states that are exempt, it could “change the calculus for districts” and make them more likely to require vaccines or regular testing if most other employers in their communities are already enforcing the mandate. In the 24 states directly under OSHA authority, state and local employers are not included.

He noted that if the court opens the door to OSHA having broad authority in this case, it will be “harder to close it in the future,” and would strengthen the government’s argument in the Head Start case. 

While some children turn 5 while in Head Start, most in the federal preschool program for children in poverty, are still too young to be vaccinated. Children are less likely to become seriously ill from COVID-19. But with Omicron leading to higher positivity rates and recent in pediatric COVID-related hospitalizations, medical experts have stressed the importance of surrounding young children with family members and caregivers who are vaccinated.

The National Head Start Association, which represents Head Start families and programs, is calling for a compromise between the administration’s hard-line position and the 24 states that sued over the mandate. The rule also requires children ages 2 and up to wear masks.

“Face masks and vaccinations play a critical role in reducing the spread of COVID-19 in early care and educational settings. But the rule wants it all one way and the lawsuit wants it all the other way,” Yasmina Vinci, executive director of the association, said in a statement. “Head Start leaders are seeking the middle ground, where local programs have the flexibility to work within local guidelines to keep classrooms open and ensure children don’t lose access to crucial services because of a mandate that is impossible to operationalize.”

‘The uphill effort’

But district leaders are concerned about the immediate impact of vaccine mandates on the classroom. 

“It will make shortages worse and exacerbate the uphill effort to get and keep schools open and kids in schools,” Noelle Ellerson Ng, associate executive director for advocacy and governance at AASA, the School Superintendents Association, said about the OSHA rule.

As they monitor court rulings regarding vaccine mandates for employees, school districts are also watching decisions regarding students.  

The Supreme Court is expected to decide before Jan. 24 whether to hear the case of a pro-life student from Scripps Ranch High School in the San Diego district who objects to human cell lines being used in the testing and creation of the COVID-19 vaccines. Cell lines, developed in laboratories and commonly used to manufacture vaccines, come from fetuses aborted decades ago. 

The mandate applies to students 16 and up. Students who don’t comply would be enrolled in remote learning.

“The irony about the mandate is that teachers are allowed to get religious exemptions, but students, who are at far lower risk [from COVID-19], are not,” said attorney Paul Jonna, who represents the plaintiffs.

In a separate San Diego case, the district plans to appeal a superior court judge’s decision . Let Them Choose, an advocacy organization, argues that only the state legislature or public health department — not districts — have the authority to mandate childhood vaccinations. The law also allows parents and students to opt out for personal beliefs. 

Two advocacy organizations made the same argument over the Los Angeles Unified School District’s vaccine mandate for students, which has been delayed until fall. In December, a Los Angeles Superior Court judge to block implementation of the mandate.

The Los Angeles Unified Board of EducationĚýĚýto delay its vaccine mandate for students 12 and up until next fall. The district was facing the possibility of transferring 34,000 unvaccinated students into an already understaffed remote learning program called City of Angels.Ěý

Leaders of the district’s administrators union were concerned about the potential loss of staff if schools lost more students.

Los Angeles Unified students 12 and over may have until next fall to comply with the district’s vaccine mandate — roughly nine months after the original Jan. 10 deadline, officials announced Friday.

The first large school system in the nation to mandate COVID-19 vaccines for students, the district is facing roughly 34,000 students who will not be fully vaccinated by the original deadline as well as concerns from parents and administrators over the surge in enrollment in the district’s remote learning program.

The plan would push thousands more unvaccinated students into an independent study program, which is already struggling to meet at a time when the district, like many others, has major . Under the contract with the union, teachers only provide remote instruction when students are in quarantine. But teachers still have flexibility in how much they interact with students learning at home.

Board members will discuss delaying the deadline at their meeting on Tuesday, when they also plan to ratify the contract of Miami-Dade superintendent Alberto Carvalho to lead the district’s schools.

Pushing back the deadline will “hopefully lessen the stress on administrators in terms of the possible number of students they may lose,” said Nery Paiz, president of the Associated Administrators of Los Angeles. 

When the nation’s second-largest school district announced its mandate three months ago, jumping out in front of vaccine requirement, some predicted it would spark a ripple effect in other districts across the country.  

With the Centers for Disease Control and Prevention lowering the age for booster shots to 16, the Biden administration and state leaders continue to strongly encourage families to get their children vaccinated. are now considering whether to add COVID-19 vaccines to the list of immunizations needed for school, and many parents and educators say more mandates are inevitable. But at the local level, officials are still up against vaccine resistance — and sometimes refusal — among parents.

On Friday morning, California Gov. Gavin Newsom said Los Angeles Unified should “fine tune” its policy to keep students in the classroom. Unvaccinated students in are facing a similar deadline.

Parent advocates suggest the Los Angeles district might have moved too quickly without a back-up plan.

“We hope the district anticipated a level of vaccine hesitancy and has drafted plans to protect every child’s right to receive a high-quality education,” Katie Braude, CEO of Los Angeles parent advocacy group Speak UP, said in a statement. She added that the organization is concerned about the virtual program’s “ability to expand this quickly to meet the needs of 34,000 more students and the domino effect of teacher displacement on kids remaining in the classroom.”

October from the Kaiser Family Foundation showed that vaccination rates among 12- to 17-year-olds have slowed down, with half of parents saying their child is vaccinated or will be soon. The survey was conducted before the vaccine for 5- to 11-year olds became available , but at the time, less than a third planned to jump at the chance and another third said they would wait to see how it was working. The remaining parents said they definitely would not be getting their children vaccinated.

‘Outside the scope’

Interim Superintendent Megan Reilly said the district “applauds” the more than 85 percent of students who are in compliance with the mandate. “This is a major milestone, and there’s still more time to get vaccinated,” she said in . 

The L.A. board’s decision could set up a confrontation with the district’s powerful teachers union. United Teachers Los Angeles “made the demand [for the mandate] at the bargaining table,” according to its statement in support. 

But the district didn’t meet their demand. The contract ratified in early October only requires the district to “make every effort” to test unvaccinated students and staff weekly for COVID-19. According to the district’s statement only unvaccinated students would have to continue weekly testing after January.

Student vaccine mandates are “outside the scope of bargaining negotiations and teachers unions know this,” said Bradley Marianno, an assistant education professor at the University of Nevada, Las Vegas. But with 500 Los Angeles Unified for not complying with the employee vaccine mandate, UTLA would likely want the district to “hold firm” on its deadline for students, he said.

A union spokeswoman did not respond to a request for comment.

Leslie Finger, an assistant professor of political science at the University of North Texas, said unions have had to perform a delicate balancing act to satisfy their large and diverse memberships.

When it comes to adults, “the unions have had to appease both the pro- and anti-vaccine membership, which I think has led the national unions to come out with somewhat tepid endorsements of vaccine mandates,” she said. “For students, however, I think unions can be more firmly pro-vaccine mandate because the policy doesn’t require anything of members who oppose getting vaccines themselves.”

Some opponents of student vaccine mandates have launched legal challenges, that shots for younger students still don’t have full U.S. Food and Drug Administration approval. The Pfizer-BioNTech vaccine for ages 16 and up received full authorization in August. 

But on Wednesday, a Los Angeles Superior Court judge said he is leaning toward denying from parent groups to halt the district’s mandate. And in against San Diego Unified, the 9th Circuit U.S. Court of Appeals last week allowed the requirement to stand. The plaintiffs are asking for religious exemptions. 

Let Them Choose, an initiative of anti-mask mandate group Let Them Breathe, has also filed against San Diego. A hearing is set Dec. 20 in San Diego Superior Court. And the organization plans to file a lawsuit against a Los Angeles that issued its own vaccine mandate, said Sharon McKeeman, the organization’s founder. 

“No family should be coerced into making personal medical decisions, and no student should feel enticed or pressured into getting vaccinated without parental consent,” she said. “The district has created a huge logistical and legal issue for itself by unnecessarily trampling on students’ rights.”

‘Relentless family engagement’

Mike Magee, CEO of Chiefs for Change, said he didn’t think the challenges Los Angeles is facing would discourage other superintendents in the network from “pursuing every possible avenue to full community vaccination.”

“Whether districts require the vaccine or not, high vaccination rates will depend on a relentless family engagement effort along with simplicity of access to the shot,” he said.

Alma Farias of Los Angeles, who has custody of her niece Cindy, an 11th grader, said she is among those who had initial reservations about the vaccine. But her concerns were outweighed by the prospect of Cindy getting sick after returning to in-person learning last spring.

She said she can sympathize with parents who are holding out. 

“There are a lot of things probably going through their minds right now,” she said in Spanish through an interpreter. “Parents are still processing all the information that is out there, and they’re still processing everything that is going on with this pandemic.” 

Chicago Public Schools CEO Pedro Martinez is among those who would like to see vaccine mandates for students and said he’s talked to the Chicago Teachers Union about it. But he said he’s not quite ready to issue a mandate for students because Chicago health officials advise waiting. 

Once the FDA grants full approval of the vaccine for younger students, that will “help our medical professionals feel more comfortable,” he said.

But he also thinks the federal government should take the lead on student vaccination mandates. Leaving it up to states, he said, means variants like Omicron are likely to spread, as long as families travel to places where a smaller percentage of the population is vaccinated.

The district has been under pressure from its teachers union  to implement “ across our schools” and to meet vaccination targets for students. But Martinez said access to the vaccine is not the problem: Regional clinics across the city offer the vaccine and 23 schools have on-site vaccination centers. 

“We’ve never had a day where we didn’t have enough supply,” he said.

According to city data, two thirds of children 5 and up are vaccinated, but among 5- to 11-year-olds, less than 10 percent of Black children and about 12 percent of Latino children are vaccinated. 

“Parents are either hesitant or there’s no urgency,” he said. “We still have to figure out what information our parents need.”