Health “Requirements” for Ohio Public Schools Require Your Consent

Rights and Obligations Regarding Enrollment

Many of you may be perfectly willing and/or want to do each and everyone of these things for your children. But Ohio law appears to guarantee exemptions from each of these requirements, and therefore it appears possible, that if a parent or guardian so chose to, they could enroll their child into any public school in Ohio without complying with any of the above health “requirements,” as long as they exercise their exemptions in writing in accordance with the laws.

Now, the first thing someone might think when hearing the above is that whoever is saying it is encouraging someone not to do these things for their child. That is absolutely not the case. The point of this article is to explain why these things are actually optional despite the fact that “everyone knows” that children must do these things in order to enroll in school. What you will learn is that they are optional because certain rights secured by the federal and state constitutions prevent the General Assembly from requiring parents to do these things. And therefore, they passed laws making them “required” thereby consenting to those requirements on behalf of everyone in the state, but in order not to violate the constitutions, they also provided guaranteed exemptions that each and every parent to exercise to revoke their consent, making them optional.

Currently, many parents comply with these requirements believing that school districts in Ohio have the authority to require their children get immunizations, undergo screenings, undergo physical exams, take medical tests and hand over private medical information, all as a condition of enjoying the entitlement to a free public education in Ohio. And that simply isn’t the case. Each and every one of these things requires your consent and your consent has already been given when the law was passed. So, the point of the article is to make you aware of this so that if you do agree with and consent to all of these requirements, you do so knowingly and willingly. And for any of you that do not wish to comply with any of the requirements, you are also aware that you have the option to revoke your consent by declining in writing.

If you learn nothing else from this article, hopefully you will at least learn that the General Assembly is limited in what laws it can pass that directly infringe upon rights secured by the constitution. So, The Center For Public Transparency believes that regardless of where you stand on these health requirements, it is important for everyone to understand that these exemptions exist for anyone that wants to exercise them and why.

Therefore, this article will review the laws behind these health requirements, highlight the guaranteed exemptions that can be exercised by any parent or guardian for those laws, and examine the constitutional constraints that are likely responsible for the existence of those exemptions.

Free Public Education is an Entitlement

One thing that is important to consider is that in Ohio, every child of a certain age that can prove residency in a school district in Ohio is entitled to a free public education. This entitlement does not depend on any parent sharing private health information of any child with the district. ORC 3313.64, “Entitlement to attend public school,” in Division (B)(1) states that “A child, who is at least five but under twenty-two years of age, shall be admitted to the schools of the school district in which the child’s parent resides.” And ORC 3313.48, “Free education to be provided,” states that “The board… of each… district shall provide for the free education of the youth of school age within the district under its jurisdiction.”

The only requirements to qualify for this entitlement, absent some exceptions listed out in the law, for example, if one is a foreigner here on a travel visa, appear to be proof of living in an Ohio school district and proof of age. Once evidence of these two things are provided to the district, the district is obligated to enroll your child into the district.

The laws that require parents and students to comply with certain health requirements actually add conditions to this entitlement and appear to convert what is a guaranteed entitlement into one that is conditioned on one waiving certain rights. Districts then proceed for the most part as if everyone has agreed to waive those rights and often present information stressing the requirements and minimizing or completely omitting the exemptions. And as will be explained in the Constitutional Constraints section, without providing for a method for a parent or guardian to revoke their consent, it appears that each of these laws would be unenforceable. Waving these rights and complying with these requirements that convert your child’s guaranteed entitlement to a free public education into a conditional one is a choice, as will be demonstrated by examining the exemptions for the various health requirements below.

You can look for more specific information for your district in one of the following policies depending on which 3rd party vendor your district uses to provide their board policy services:

• NEOLA Policies 5111 and 5112

• OSBA Policy JEC

• Pepple & Waggoner Policy 6.02

If you are unaware of which board policies your district uses, you can simply email any of the superintendents to ask or look for the board of education page on the district’s website where there is usually a link to the policies. There are three main vendors that supply board policies to Ohio public schools. NEOLA (exemple) policies are divided into sections 1000 - 9000. OSBA (exemple) policies are divided into Sections A - L. People & Waggoner (exemple) policies are divided into Chapters 1 - 9.

Now let’s get into the specific health requirements.

Health Requirements

The laws that lay out the health requirements for graded curriculum for Ohio public schools are ORC 3313.67 through ORC 3313.73. The health requirements are for things like physical exams, immunizations, tests or screenings. Others require parental authorization like for dispensing drugs or for emergency treatment. Each and every one of these health requirements for physical exams, immunizations, tests or screenings, as described above, appears to be paired with a guaranteed right for a parent or guardian to exempt their children from the requirements. You can read a detailed summary of each of those laws in this article: Summary of All Health Requirements for Public Schools in Ohio and Their Guaranteed Exemptions.

As seen in the table above, most of these requirements are not required to be complied with until after the school year begins, and the two that don’t have specific dates are to be conducted on “pupils in selected grades'' for tuberculosis, or a pupils “enrolled” in the school for Healthchecks. So all of these requirements are for students that have already been enrolled, not students yet to be enrolled. Nonetheless, for the sake of efficiency, districts tend to leverage enrollment as an opportunity to make sure children are in compliance with all of these requirements, such that if you choose not to participate in some of the health requirements or to share your child’s private health information with the district, it is possible that unless you actively submit a written exemption, you will be unable to register your child and therefore your child will be unable to enroll into the district.

Immunizations

ORC 3313.67, “Immunization of pupils,” and ORC 3313.671, “Proof of required immunizations - exceptions,” require immunizations for all students and require schools to deny admittance to children who have not “present[ed] written evidence satisfactory to the person in charge of admission that the pupil has been immunized” within 14 days after the school year begins. The list of required immunizations can be found on the Ohio Department of Health’s website. Ohio law also guarantees three types of exemptions, two that can be claimed by parents, natural immunity (1-3 below) and reasons of conscience (4 below) and one that requires physician certification (5 below):

“(B)(1) A pupil who has had natural rubeola, and presents a signed statement from the pupil's parent, guardian, or physician to that effect, is not required to be immunized against rubeola.

(2) A pupil who has had natural mumps, and presents a signed statement from the pupil's parent, guardian, or physician to that effect, is not required to be immunized against mumps.

(3) A pupil who has had natural chicken pox, and presents a signed statement from the pupil's parent, guardian, or physician to that effect, is not required to be immunized against chicken pox.

(4) A pupil who presents a written statement of the pupil's parent or guardian in which the parent or guardian declines to have the pupil immunized for reasons of conscience, including religious convictions, is not required to be immunized.

(5) A child whose physician certifies in writing that such immunization against any disease is medically contraindicated is not required to be immunized against that disease.”

Natural Immunity

In Ohio, natural immunity only requires a parent to attest to the fact. No physician’s certification is required. But, this exemption only applies to rubeola (measles), mumps and chickenpox which are only a subset of all the required immunizations found at the link above. So, if one intended to decline all immunizations, this exemption would not apply. For anyone intending to exercise this exemption, a sample statement for natural immunity is provided below. For anyone intending to comply, records from a physician documenting the immunizations will need to be turned in.

Reasons of Conscience

If you examine the basic skeleton of this law, it states that:

“No pupil… shall be permitted to remain in school… unless the pupil presents written evidence… that the pupil has been immunized… [or their] parent or guardian declines to have the pupil immunized for reasons of conscience.”

For reasons of conscience exemptions, any parent or guardian qualifies and a religious reason is not needed; a religious reason is merely one of the acceptable reasons under the umbrella of “reasons of conscience.” Ohio is one of fifteen “personal belief” or “philosophical exemption” states in which one only needs to claim an objection to immunization. Under Ohio law, one can claim “reasons of conscience” to satisfy this requirement.

And even if they claim a “religious conviction,” they are not required to be a member of a recognized denomination or even belong to a church, have a letter from a clergy member, quote bible verses or point to any church doctrine that supports their reason for refusal. They simply need to state that they decline for “religious convictions” in writing and submit it to the district. If one does not intend to comply with the requirement but has any reservations about claiming a religious objection due to not feeling that they meet the requirements of being religious, they can simply claim an objection based on “reasons of conscience” instead, which is the equivalent of claiming one for philosophical or personal belief reasons. For anyone intending to exercise this exemption, sample statements are provided below. For anyone intending to comply with this requirement, again, documentation from a licensed physician will need to be turned in.

Medical Contraindication

Medical exemptions require certification from a physician indicating which immunizations a child is contraindicated for. Example written statements are provided below. But whether you use your own statement or a form the school provides you, you will need to attach verification from the physician who has made the decision that certain immunizations are contraindicated.

Exemption Forms

If you choose to exercise any of these exemptions, your district will likely hand you a form with the word “request” on it. That form asks for a reason. Acceptable reasons should be “reasons of conscience” or “religious convictions.” ORC 3313.67 does not authorize school districts to approve or deny such exemptions. As stated above, it simply states that “A pupil who presents a written statement… in which the parent or guardian declines to have the pupil immunized for reasons of conscience, including religious convictions, is not required to be immunized.” So, once a written statement has been turned in that claims an objection according to the law, the exemption has been executed.

Some forms that school districts used are based on an older pre-2005 law that required parents to state a “good cause,” which appears to be the equivalent of “reasons of conscience.” These forms are outdated. The term “good cause” no longer appears in the law. Here is an example from a school that uses this form based on the old law which demands a reason for choosing “good cause.” And here is one that gives the parent the option to just check a box for religious, medical or good cause without requiring a reason. Here is one that doesn't differentiate between religious objection, reasons of conscience or good cause but requires a specific reason for each immunization declined. So, as you can see, there is little consistency among the forms used; the form your school hands you may require you to give a reason or it may require you simply to sign it and turn it back in.

According to the Ohio Legislative Service Commission, you are not required to use your district’s form; you can submit your own statement. If you choose not to use your district’s form, below are three forms you can use to exercise religious/reasons of conscience, medical and natural immunity exemptions. Obviously, for any of you intending to comply with the requirement, no exemption form will be needed.

• Natural Immunity

• Reasons of Conscience or Religious Convictions

• Medical

Lack of Clarity Regarding Exemptions

Many districts omit any mention that exemptions exist at all for the immunization requirement, much less that they are guaranteed and equally available to any parent that chooses to claim them. Just because a district doesn’t mention that exemptions apply doesn’t negate the fact that they are guaranteed by law.

For example, here is the registration page for Cleveland Metropolitan School District. It mentions the requirement with no mention of an exemption or link to an exemption form:

“The immunization document must be an official record. It should be initialed or signed by a healthcare professional. Acceptable documents include a doctor’s form, a “baby book” or a Head Start form.”

Yet, in another location on the district’s website, the board policy on immunizations indicates that a parent can file an objection “in compliance with State law.”

Here is the required documents page for Bexley City Schools near Columbus. It notifies parents that they must provide written evidence of immunization of that they are in the process of immunizations. There is no mention that an exemption exists or a link to an exemption form:

“Written evidence of required immunizations (or written evidence to indicate in process of receiving immunizations to be completed no later than the first day of school);**

**The district maintains an immunization record for each student. Students failing to complete immunizations within 14 days after attending are not permitted to return to school.”

The same text is repeated again when parents are asked to upload proof in the registration portal. Yet, in another location on the district website, the board policy related to immunizations indicates that parents can submit an objection “in compliance with State law.”

Here is a notice that North Royalton sends out to 12th graders about the meningitis requirement, warning them that they will be excluded from school if they do not provide the “appropriate documentation” while failing to mention that an exemption is a form of appropriate documentation:

“All Ohio students entering 12^th grade must now have had the meningococcal vaccine administered prior to entry… We take the health, safety, and well-being of our students very seriously. As with other school immunization requirements, Section 3313.671 of the Ohio Revised Code states that students who do not provide documentation of appropriate immunization are subject to exclusion from school.”

Yet, also in another location on the district’s website, the board policy on immunization indicates that parents can submit a written statement to decline.

Cincinnati Schools, the same. No mention on the registration page, but exemptions confirmed in board policy. Akron, the same. No mention on the registration page, but exemptions confirmed in board policy. But, on the other hand, Milford Schools near Cincinnati, links directly to an exemption form on its health services page, demonstrating that districts can be transparent if they choose to be by also being transparent about the exemption on the registration page at the same time the requirement is made clear.

Most districts will provide a link to the Ohio Department of Health Immunization Summary on their registration page. This form does mention under the notes section that parents can refer to ORC 3313.67 and 3313.671 for additional information about exemptions, but it also does not clarify that exemptions are available to each and every parent or guardian or that they are guaranteed. Many school officials including elementary principals who host informational sessions for parents about enrollment requirements are also not aware that this exemption is guaranteed and available to any parent that wishes to claim one and falsely believe that they are only available to certain people who can prove a sincere religious conviction, let alone that any of the other health requirements also have guaranteed exemptions as will be explained below.

Most districts require at some point during the registration phase that parents or guardians must upload or provide proof of immunizations in order to complete their registration so that they can make the appointment to come in and provide proof of age and residency for enrollment. Like the Bexley example above, some districts never mention that exemptions exist on their health services web pages or in the registration portal. As stated above, the fact that mention of the guaranteed exemption is omitted does not negate the fact that the law requires it.

Exclusion During Outbreaks

Anyone that wishes to exercise this exemption should be aware that districts are authorized under ORC 3313.671(C) to exclude unimmunized students from school during an outbreak of the disease they are not immunized against, but that the academic standing of the excluded student who will be denied admission based on their exemption status must be preserved. Despite the guarantee that a student’s academic standing will not be harmed, many districts omit the fact that academic standing must be preserved and only inform parents that their children will be denied admission during an outbreak thus implying that students will suffer academically for choosing not to be immunized should an outbreak occur. The sample request form above is an example where a district has omitted this important information. Anyone, of course, that intends to comply with this requirement will not be affected by this provision.

Board Policies

For more information on your district’s immunization requirements, look for the following policies on the district's website or call the school nurse:

• NEOLA Policy 5320

• OSBA Policy JCHB

• Pepple & Waggoner Policy 6.30

Screenings for Kindergarten and First Grade

ORC 3313.673, “Screening of beginning pupils for special learning needs,” requires districts to screen all incoming kindergartners and first graders for special needs by conducting screenings for “hearing, vision, speech and communications, and health or medical problems and for any developmental disorders… prior to the first day of November of the year in which the pupil is enrolled.” In order to meet these requirements, many districts do the following:

• To screen for speech and communications or developmental disorders:

  • Conduct their own cognitive assessments prior to the school year beginning.

• To screen for hearing and vision:

  • Conduct their own hearing and vision screenings after the school year begins.

• To screen for medical problems:

  • Request parents to use their own private physicians to conduct a physical exam using the form the district provides.

  • Request parents to fill out a separate health history form.

  • The physical exam, if required by the districts, and any health form are used together to fulfill the requirement of the district to screen for medical problems.

Despite these requirements, ORC 3313.673 contains a guaranteed exemption for a parent to exercise for any of these screenings:

“Any parent requested to obtain any screening services under this division may sign a written statement to the effect that he does not wish to have his child receive such screening.”

Cognitive Assessments

Cognitive assessments are one of the assessments usually conducted by the district itself. Not only do they allow the district to screen your child for speech and communications or other developmental disorders so that they can better meet the needs of individual students, they are also a tool used by the district to balance their classrooms with children of different abilities. During a typical cognitive assessment, your child will likely be taken alone in a room with an adult tester who will ask them questions to determine things like if they can tell right from left, understand the concept of time, distinguish sizes and recognize shapes and letters, among other cognitive abilities. There is no law that requires children to be in a room alone while this assessment is carried out, so you are well within your right to ask to be present if you desire. There is no guarantee, though, that a district will allow you to be present just because you have asked.

Most districts do not have an exemption form for this screening, so if you did choose to exempt your child from this screening and your district insists that you submit a form, here is a sample form you could use.

Vision and Hearing Screenings

Vision and hearing screenings are also typically conducted by the district during normal school hours during the school year. Many parents appreciate that their children’s vision and hearing can be assessed by competent professionals conveniently while their children are already at school and at no cost to them. Yet, ORC 3313.673 guarantees an exemption for any parent or guardian who does not consent to such screening. For any parent wishing to decline such screenings, the Ohio Department of Health puts out separate publications discussing both the hearing and the vision screenings which each contain sample waiver forms (search for “waiver” in each). Here is another much more basic sample form that you can use as well.

Physical Exams

There is no law that specifically requires a physical exam for incoming kindergartners or first graders. ORC 3313.673 only states that districts are required to screen for “medical problems.” As a result, there are some districts that do not require physical exams for incoming students. Individual districts can choose to use a physical exam at their sole discretion, and most do. Some districts choose to require an “invasive physical exam,” which is defined in 20 USC 1232h(c)(6) as:

“any medical examination that involves the exposure of private body parts, or any act during such examination that includes incision, insertion, or injection into the body, but does not include a hearing, vision, or scoliosis screening.”

Since Ohio requires students to obtain immunizations and immunization status is usually listed as an item on district physical exam forms, those immunizations could then be considered an “injection” that is part of the exam if a child was not up to date on all their immunizations at the time of the exam and received any at the time of the exam. Some district physical exam forms also request the physician to do genital exams. Either of those two items might make such a demand for a physical exam an “invasive physical exam” according to the above definition.

Many districts properly notify parents that they have a right to refuse all screenings, but rarely, if at all, do they clearly indicate that the required physical exam is one of the screenings the parent or guardian has the right to refuse. Often, the physical exam is presented as something separate and in addition to the required screenings which might lead any reasonable person to believe it doesn't qualify for the exemption.

The district is required to provide a free public education for your child. And, knowing whether or not they have any physical or mental health challenges will provide valuable information that they will be able to use in order to meet your child’s needs. And that appears to be the spirit behind requiring the screenings required by ORC 3313.673. Yet, at the time of it’s passing, the General Assembly appears to also have been aware that all citizens have the right secured by the US Constitution’s 4th Amendment (Ohio’s Article I Section 14) to be secure in their persons and papers from all unreasonable searches and seizures, and that any reasonable search would require 1) the suspicion of a crime and 2) either a warrant or probable cause, and therefore, in order to not violate these secured rights, provided a guaranteed exemption that anyone could claim to decline the requirements. Read more about such possible constitutional provisions in the Constitutional Constraints section below.

Many parents who do have students with physical or mental challenges may welcome such opportunities to provide such information to the district, and could be considered to have a responsibility to do so. Yet, any parent or guardian, whether they have children with challenges or not, has the right to exercise their constitutionally secured right to be secure in their persons and papers and a district should not represent that it has the authority to override such rights, especially when there is no Ohio law granting such authority.

If you choose to decline a physical exam required by your district and they don’t have an exemption form, here is a sample form you can use.

Health History Forms

Likewise, there is no law that specifically requires parents or guardians to fill out a health history form for incoming kindergartners or first graders. Whether or not a district requires a physical exam, it does appear that all districts do require a health history form to be filled out. And the same as with the physical exam above, although most districts properly notify parents that they have the right to refuse any of the required screenings, most districts fail to identify filling out a health history form as one of the screenings that parents and guardians have the right to refuse, and rather present it as something separate and in addition to the required screenings. Health information is, after all, private information. And, like all private information, it is protected by the 4th Amendment.

If you choose to decline to fill out a health history form required by your district and they don’t have an exemption form, here is a sample form you can use.

For more information about your districts requirement for physical exams or health forms, look for the following policies on the district's website or you can call the school nurse:

• NEOLA Policy 5310

• OSBA Policy JCHA

BMI Screening

ORC 3313.674 permits districts to require BMI testing and it also provides for a guaranteed ORC 3313.71, “Examinations and diagnoses by school physician,” requires districts to test for tuberculosis at the discretion of the director of The Ohio Department of Health. There currently is no such requirement from the director, but tuberculosis tests do appear the Ohio Department of Health suggested physical exam form that many districts use indicating to the physician conducting such an exam that the district is expecting a test result. 3313.71, though, has what appears to be a guaranteed religious exemption:exemption:

“If the parent or guardian of a student subject to the screening signs and submits to the board… a written statement indicating that the parent or guardian does not wish to have the student undergo the screening, the board or governing authority shall not require the student to be screened.”

It appears that very few districts, if any, currently require this screening. But, ff your district does require it and you wish to exercise your guaranteed exemption, here is a sample form you can use as most districts do not have a form for this exemption.

Tuberculosis Testing

ORC 3313.71, “Examinations and diagnoses by school physician,” requires districts to test for tuberculosis at the discretion of the director of The Ohio Department of Health. There currently is no such requirement from the director, but tuberculosis tests do appear the Ohio Department of Health suggested form that many districts use indicating to the physician conducting such an exam that the district is expecting a test result. 3313.71, though, has what appears to be a guaranteed religious exemption:

“Boards shall waive the required test where a pupil presents a written statement… from the pupil's parent or guardian objecting to such test because of religious convictions.”You have been presented information that suggests that each and every health requirement for public schools is actually optional since they are each paired with a guaranteed exemption that can be claimed by any parent or guardian with no requirement that they prove membership of any church or denomination, submit letters from any clergy member, or quote any religious scripture.

The constitutional provisions that are most likely to be the reason that such guaranteed exemptions exist were examined to help you better understand why the General Assembly would include guaranteed exemptions for requirements that they desired every child enrolling into public school to comply with.

Examples were given to demonstrate that many districts fail to properly notify parents or guardians of the existence of these exemptions giving the impression that there is no choice but to waive certain protected rights in or comply with the requirements in order to enjoy the statutory entitlement of a free public education in Ohio despite that each appears to be optional according to the exemptions provided for under the law.

There is no accusation being made that school administrators purposely attempt to hide awareness of these exemptions but rather are ignorant themselves of their existence and are just following board policy. The ideal outcome would be for board members to read this article and to update their policies accordingly to ensure transparency all the way down to health services pages, enrollment packets and registration portals so that each parent can consciously decide whether to knowingly agree to waiving the rights already waived on their behalf when the laws mandating these health requirements were passed, or revoke their consent to these requirements by exercising the guaranteed exemptions.

Hopefully the information presented here has now armed you with the knowledge to not only know that such exemptions exist and how to exercise them if you choose not to waive your rights by complying with the requirements, but also a better understanding of how the constitution works to protect certain fundamental rights.

If you choose to claim any of the exemptions explained above at districts where school administration are not aware of such exemptions, please always be courteous and respectful to any school official who may demand proof of your claims. Feel free to share this article with them if they question your right to exempt your child from any of these requirements. There should be no such need if you choose to comply with them.

And certainly if you feel this article has provided you with any value please consider subscribing to support The Center and share this article with others you feel the information might be relevant to.

And the religious exemption in 3313.71 also appears to be a guaranteed exemption such that one only needs to claim they object to the test due to “religious convictions” in writing, and that once they do, they are exempt. Although there is no Legislative Service Commission analysis on this law, due to the similarity in language and the absence of any authority for the district to scrutinize the claim, it appears that the same would be true for this exemption.

A parent who wishes to conduct the physical exam yet is opposed to tuberculosis testing that may appear on the physical exam form as a requirement can inform the physician, if the physician mentions the tuberculosis test or attempts to conduct it, that they do not want a tuberculosis test done, and if necessary, mention that the exemption in ORC 3313.71.

Most districts do not have a specific form for a tuberculosis exemption and may not even question why a result did not show up on the physical form. But, in case you do need a form or want to submit one, below are three forms you can use:

• Free from Tuberculosis

• Medical Contraindication

• Religious Objection

Medicaid Healthcheks

ORC 3313.714, “Healthcheck program for recipients of medical assistance,” authorizes the Ohio Department of Medicaid to demand that districts carry out Healthchecks for Medicaid recipients or the local board to request authorization to establish a Healthcheck program. A Healthcheck program is comprehensive and includes all the above screenings as well as a nutritional assessment and lead screening. So, if your child is not covered under Medicaid or if your school is not conducting these Healthchecks, then this exemption is not currently applicable. Although Healthchecks require parental approval before they can be done, the law states that if notice is sent to parents and there is no response, after two weeks parents are deemed to have given their consent:

“If the parent does not return a signed form indicating denial of consent within two weeks after the date the notice is sent, the school district and the department of medicaid shall deem the parent to have consented to examination of the parent's child under the healthcheck program.”

So, if your child is covered by Medicare, you don’t wish to participate in the program and you believe that your school may be conducting such Healthchecks, here is a sample form you could use to decline the Healthcheck at the beginning of the school year to prevent consent due to any failure to respond to a notice from the district. You can confirm whether or not your school conducts Healthchecks by calling the school nurse.

Universal Form

In case you wanted to exercise all of the above exemptions all in one form, here is one form that contains choices for each of the above exemptions.

Constitutional Constraints

When the General Assembly passed the laws for the above health requirements, it is clear that they intended that all children entering school should be subject to such requirements. If so, one must wonder, why then, did they include guaranteed exemptions that are available to each and every person the laws apply to, exemptions that if exercised, make the requirements optional?

The Guidebook for Ohio Legislators, written by the Legislative Service Commission, on pg. 1, reminds us that the state constitution puts certain constraints on the General Assembly’s authority, stating that: “All laws enacted by the legislative branch must comply with the Constitution’s provisions; those that do not are unenforceable.”

So, one conclusion that can be drawn considering that the General Assembly included guaranteed exemptions available to each and every parent or guardian to claim in each of these laws is that there must be some provision of the Constitution that places restraints on the General Assembly to require such things in the first place. Otherwise, wouldn't they have just promulgated the requirements and not included any way for anyone to decline them?

As you will see from the analysis following this section, it appears as though the General Assembly was restricted to obtaining the consent of the students or their parents or guardians based on the provision discussed below. So, when passing the laws above, it appears that to achieve their goal, they consented on behalf of the students and their parents and guardians so that they would all become subject to the requirements and the enforcement of those requirements by default, but, in order to remain constitutional compliant, provided for a guaranteed exemption for any person subject to the requirements to revoke their consent by way of exercising a guaranteed exemption, making the consent voluntary, so as not to overstep constitutional limitations.

Below is an overview of some of the constitutional provisions I think are most applicable to this scenario:

Article I Section 7 Rights of Conscience

The possible provisions relevant to the exemptions requiring that one claim a religious objection or reasons of conscience are the US Consitution’s 1st Amendment which states that “Congress shall make no law… prohibiting the free exercise [of religion]” and the Ohio Constitution’s Article I Section 7 that states that “All men have… [an] indefeasible right to worship Almighty God according to the dictates of their own conscience… [and no] interference with the rights of conscience [shall] be permitted.” At first glance, they seem to both protect the right to freely exercise religion, but they actually have fundamental differences.

The primary difference is that the 1st Amendment only protects the exercise of religion, therefore one’s objection must be based upon a religious premise, whereas Ohio’s Article I Section 7 does not guarantee the right to exercise a religion as much as it guarantees the right to choose whether or not to be religious at all. According to the Right of Conscience, one can worship as they set fit which could include choosing not worshiping at all. So there doesn’t appear to be a requirement under the protection of Article I Section 7 to base one’s objection on a religious premise. And other than for the exemption for tuberculosis, the exemptions that are guaranteed for the laws mandating certain health requirements are consistent with that. In fact, even the “religious” requirement for the tuberculosis exemption appears to be consistent with that based upon how it is handled as was described above.

Defining Religious Belief

The common understanding of a religious belief is that one must belong to a recognized denomination or be a member of a local church, have access to a clergy member that supports their view, and be able to either quote religious texts or other religious doctrine that supports their view. Yet, the Supreme Court has examined religious beliefs in detail in various cases involving conscientious objectors to selective service and determined that none of those things are necessary in order to claim a valid religious objection. They created a two part test for religious belief:

1. The belief must not be based solely on political, sociological or philosophical views or a personal moral code. The distinguishing factor to determine whether a belief was religious as opposed to the above was that there is a belief in some force or power superior to human relations that they felt a duty to. This force or power did not need to be a deity, meaning the belief could be theistic or nontheistic.

2. Once it was determined that their belief was not based solely on political, sociological or philosophical views or a personal moral code, then the next thing to determine was whether or not it was sincere and meaningful occupying a place parallel to that of one that did believe in a deity.

That’s it. There was no requirement that they prove any membership of a church or denomination, submit any letters from clergy members, quote any scripture, or even claim that they prayed or meditated. They only needed to demonstrate that their belief was religious to some degree and held with a certain amount of strength. For a detailed breakdown of those Supreme Court cases, see Legally Defining Religious Belief.

Defining a Conscientious Objection

As stated above, since the right to worship God according to the dictates of one’s own conscience also protects the right not to worship at all, then it would seem that logic would dictate that there could be no religious test involved in order to exercise the right of conscience. And, as pointed out earlier, Ohio is considered a “personal belief” state when it comes to immunizations based on the ability to claim “right of conscience” in order to decline immunizations as opposed to making a religious claim. And it is well known that personal belief states do not require a reason in order to decline a requirement.

And think about it. How could one require a religious objection to a health requirement for public schools in Ohio when the constitution already guarantees the freedom to worship God as one pleases which includes not to worship at all? If one is protected in the right to worship as they see fit, and chooses not to worship at all, who is to say then that such a person making a religious objection who chooses not to worship anything according to the dictates of their own conscience would be doing so in bad faith? Perhaps that is why the General Assembly did not authorize anyone to demand any proof of such a claim in ORC 3313.71. That’s a question that’s up for debate, but the evidence certainly supports this conclusion.

Based on this, it appears then, that even the tuberculosis religious exemption could be considered to be protected by Article I Section 7 and not just the 1st Amendment.

Article I Section 14 Search Warrants and General Warrants

The 4th Amendment and Article I Section 14 of the Ohio Constitution are basically identical:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

One might think, what does the 4th Amendment which protects one from unreasonable searches and seizures have to do with any limitations on the General Assembly’s ability to promulgate laws requiring immunizations, testing, screening, or physical exams in order to enroll in public schools in Ohio? Immunizations and tuberculosis tests were discussed above and appear to be covered by Article I Section 7, so this provision is likely to be more related to the exemptions that didn’t require any reason at all in order to be declined such as screenings and physical exams.

Let’s consider how it would apply to physical exams for example. For any person that consents to undergoing an exam, they must waive their 4th amendment rights to be secure in their person and papers (information) in order to assist the physician in carrying out the act of conducting the exam. The physician needs to touch the one undergoing the exam and ask certain questions of them in order to do so. The physician must document that he or she has received permission from the patient to conduct the exam. You may recall that each time you visit a physician you must sign a consent to be examined and treated before the physician can see you. Here is such a consent form.

But, imagine if one was required to submit their child to a physical exam that they didn’t consent to. In that situation, they would be required to do all of the following:

• Provide private information for questionnaires including medical history information;

• Allow the nurse to take the vitals of one’s child;

• Answer the physician’s questions about how they raise their child such as how they feed and discipline their child, and what their child’s developmental milestones are, and other questions that are routinely asked during any “well baby visit”;

• Allow the physician to touch, probe, and palpate their child, including examining their genitals, in other words, to conduct a search of their child’s person;

• Possibly to surrender biological samples from their child in the form of salvia, urine, feces, or blood, if demanded (these things would be considered seized).

Each of these things is protected by the 4th Amendment and normally would require the suspicion of having committed a crime backed by a sworn oath by an accuser in order to obtain a judge’s warrant for the government to require a search of someone or to seize things from them without their consent. One might ask, would such a search as a condition of enjoying the entitlement of a free public education be considered to be a reasonable search by the General Assembly, thus not restricted by the 4th Amendment? If it was, why would the general assembly have included a guaranteed exemption applicable to each and every person the law applies to that they could claim to exempt themselves from it making it voluntary?

Then, this would lead one to conclude that in fact the existence of this guaranteed exemption available to every person subject to the law has been included precisely because it would render the law enforceable otherwise. So, as with the requirements for tuberculosis and immunizations, the General Assembly, in its wisdom, when passing ORC 3313.673, appears to have understood that it simply didn’t have the authority to force a search of one’s person without their consent and so in order to remain constitutionally compliant, after consenting on everyone’s behalf to be subject to certain screening requirements, which includes things like physical exams, and the consequences for not complying with those requirements, included a guaranteed exemption for anyone subject to this law wishing to claim one in order to revoke their consent.

Article I Section 1 Inalienable Rights

At this point, it may seem unnecessary to even discuss Article I Section1, but it is worth pointing out that the Ohio Supreme Court considers the “liberty” protected by this Section to be just as valid as Article I Sections 7 and 14 in terms of requiring one’s consent to interfere with their person by declaring in Steele v Hamilton Cty Cnty Mental Health Bd that:

“personal security, bodily integrity, and autonomy are cherished liberties [that] are rights inherent in every individual [protected by] Section 1, Article I of the Ohio Constitution.”

In other words, according to the Ohio Supreme Court, it appears that one does not need to even cite Article I Sections 7 or 14 as reasons for refusing anything that might affect their personal security, bodily integrity, or bodily autonomy, that they could simply cite their protected “liberty” under Article I Section 1.

Conclusion

You have been presented information that suggests that each and every health requirement for public schools is actually optional since they are each paired with a guaranteed exemption that can be claimed by any parent or guardian with no requirement that they prove membership of any church or denomination, submit letters from any clergy member, or quote any religious scripture.

The constitutional provisions that are most likely to be the reason that such guaranteed exemptions exist were examined to help you better understand why the General Assembly would include guaranteed exemptions for requirements that they desired every child enrolling into public school to comply with.

Examples were given to demonstrate that many districts fail to properly notify parents or guardians of the existence of these exemptions giving the impression that there is no choice but to waive certain protected rights in or comply with the requirements in order to enjoy the statutory entitlement of a free public education in Ohio despite that each appears to be optional according to the exemptions provided for under the law.

There is no accusation being made that school administrators purposely attempt to hide awareness of these exemptions but rather are ignorant themselves of their existence and are just following board policy. The ideal outcome would be for board members to read this article and to update their policies accordingly to ensure transparency all the way down to health services pages, enrollment packets and registration portals.

Hopefully the information presented here has now armed you with the knowledge to not only know that such exemptions exist and how to claim them, but also a better understanding of how the constitution works to protect certain fundamental rights.

When attempting to claim such exemptions at districts where school administration are not aware of such exemptions, please always be courteous and respectful to any school official who may demand proof of your claims. Feel free to share this article with them if they question your right to exempt your child from any of these requirements.

And certainly if you feel this article has provided you with any value please consider subscribing to support The Center and share this article with others you feel the information might be relevant to. You can also reach out to the center at centerforpublictransparency@gmail.com with feedback, suggestions or comments.