October 20, 1978
Subject:
Health; Immunization; Exclusion of Students from School under G.S. 130-90
Requested By:
Dr. J. N. MacCormack, Head Communicable Disease Control Branch Division of Health Services
Questions:
- Does G.S. 130-90, after amendment of G.S. 130-87 by Chapter 191, 1971 Session Laws and by Chapter 160, 1977 Session Laws, require all children presently attending school in North Carolina to be immunized against red measles (rubeola) and rubella?
- Are school authorities now prevented from excluding student from school in accordance with
G.S. 130-90 for not obtaining the immunizations required by G.S. 130-87 (at the time such students were first enrolled in school in North Carolina) when such students have been allowed to continue in school after expiration of the thirty (30) day grace period during which evidence that the child had received the required immunizations should have been presented to school authorities?
Conclusion:
- All children presently attending school in North Carolina are not required to be immunized against red measles (rubeola) and rubella as a requirement for continuance in school. All children enrolled in school for the first time in North Carolina after April 13, 1971 are required to be immunized against red measles (rubeola) as well as the other previously required immunizations and all children enrolled in school for the first time in North Carolina after July 1, 1977 must also be immunized against rubella as a requirement for continuance in school.
- Under G.S. 130-90, school authorities are able to exclude students from school who have not received the immunizations required by G.S. 130-87 (at the time such students were first enrolled in school in North Carolina) even though such students were allowed to continue in school after expiration of the thirty (30) day grace period, set forth in G.S. 130-90.
As to the first question presented, the conclusion reached is based on the same reasoning and in accordance with the Opinion of the Attorney General to Dr. J. N. MacCormack concerning rubella immunization dated November 29, 1977 and reported at 47 NCAG 130.
As to the second question presented, are school authorities prevented by the doctrine of estoppel from enforcing G.S. 130-90?
Generally, laches and estoppel may not be relied upon to deprive the public of protection of a statute because of mistaken action or lack of action on the part of public officials. McComb v. Homeowners’ Handicraft Coop., 176 F. 2d 633, cert. denied, 70 S. Ct. 250, 358 U.S. 900, 94 LEd. 553 (N.C. App. 1949); accord, S.S. Kresge Co. v. Davis, 277 N.C. 654, 178 S.E. 2d 382 (1971). However, the doctrine of estoppel may be applied cautiously because of the public interest involved. See, Goldhlath v. Chicago, 39 Ill. App. 2d 211, 174 N.E. 2d 222 (1961); accord, Lanier v. Williams, 361 F. Supp. 944 (D.C.N.C. 1973).
The purpose of G.S. 130-90 is to protect the public health by conditioning a child’s continuance in school on his obtaining the immunizations required by G.S. 130-87. It is stated in 39 Am Jur 2d, Health, Section 1, that:
"The preservation of the public health is one of the duties devolving on the State as a sovereign power. In fact, among all the objects sought to be secured by governmental laws, none is more important, and an imperative obligation rests on the State, through its proper instrumentalities or agencies, to take all necessary steps to promote this object."
If suitable information is given to parents of unimmunized children concerning the required immunizations and if an adequate time for compliance is provided; it would seem that the exclusion of such children from school would not result in manifest injustice as long as any constitutional requirements of due process are met concerning such explusion, especially in light of the public interest involved.
For the above reasons, it is our opinion that G.S. 130-90 would require a child to only receive the immunizations required by G.S. 130-87 when he was first enrolled in school either as a result of his attaining the age required by G.S. 115-162 or G.S. 115-205.12 or as the result of his parents or guardian becoming residents of this State and that the duty of school authorities to exclude children who do not receive such immunizations arises thirty (30) days after their admittance to school and is enforceable at any time thereafter.
Rufus L. Edmisten Attorney General
Jan Napowsa Associate Attorney