Legal considerations for health emergency measures in schools and education

Legal considerations for health emergency measures in schools and education

Legal considerations for health emergency measures in schools and education Legal considerations for health emergency measures in schools and education ISBN 978-92-4-009068-2 (electronic version) ISBN 978-92-4-009069-9 (print version) © World Health Organization 2024 Some rights reserved. This work is available under the Creative Commons Attribution-NonCommercial- ShareAlike 3.0 IGO licence (CC BY-NC-SA 3.0 IGO; https://creativecommons.org/licenses/by-nc-sa/3.0/ igo). Under the terms of this licence, you may copy, redistribute and adapt the work for non-commercial purposes, provided the work is appropriately cited, as indicated below. In any use of this work, there should be no suggestion that WHO endorses any specific organization, products or services. The use of the WHO logo is not permitted. If you adapt the work, then you must license your work under the same or equivalent Creative Commons licence. 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To submit requests for commercial use and queries on rights and licensing, see https:// www.who.int/copyright. Third-party materials. If you wish to reuse material from this work that is attributed to a third party, such as tables, figures or images, it is your responsibility to determine whether permission is needed for that reuse and to obtain permission from the copyright holder. The risk of claims resulting from infringement of any third-party-owned component in the work rests solely with the user. General disclaimers. The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of WHO concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. Dotted and dashed lines on maps represent approximate border lines for which there may not yet be full agreement. The mention of specific companies or of certain manufacturers’ products does not imply that they are endorsed or recommended by WHO in preference to others of a similar nature that are not mentioned. Errors and omissions excepted, the names of proprietary products are distinguished by initial capital letters. All reasonable precautions have been taken by WHO to verify the information contained in this publication. However, the published material is being distributed without warranty of any kind, either expressed or implied. The responsibility for the interpretation and use of the material lies with the reader. In no event shall WHO be liable for damages arising from its use. Cover image: Staff and students wear face masks at the Tika Vidyashram government school in Kathmandu. © WHO / Tom Pietrasik iii Contents Acknowledgments iv Abbreviations and acronyms v Executive summary vii 1. Overview 1 1.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.2 Purpose and Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.3 Scope and Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.4 Data sources and methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. International guidance, state practice and legal norms 4 2.1 International guidance on PHSM & education and schools during COVID-19 . . . . . . . . . . . 4 2.2 International legal framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2.3 General characteristics of claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2.4 Process considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3. Closure of schools and implementation of remote learning alternatives 8 3.1 Intervention: School closures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3.2 Intervention: Remote learning measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 4. Re-opening of schools and measures associated with in-person learning 12 4.1 Intervention: Testing mandates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 4.2 Intervention: Face mask mandates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 4.3 Intervention: Vaccine mandates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 5. Conclusion 15 Annex: Frequently cited legal principles 16 References 18 iv Acknowledgments This publication was authored by World Health Organization staff members Daniel Hougendobler, Technical Officer (Legal), and Benn McGrady, Head of Unit, Public Health Law and Policies, Health Promotion Department, under the guidance of Rüdiger Krech, Director, Health Promotion Department. Significant research support was provided by Alicia Nicolaï, Intern, and Paba Piyarathne, Intern, Public Health Law and Policies, Department of Health Promotion. WHO is deeply grateful to the University of Trento, and in particular Paola Iamiceli, Full Professor of Private Law, who leads the COVID-19 Open-Access Case Law Database which served as the primary data source for this publication. WHO also wishes to thank all contributors to the COVID-19 Solidarity Response Fund, which supported the development of the Case Law Database. In addition, WHO wishes to thank the following individuals who contributed to development of this publication. Technical review The following individuals provided valuable technical review of the draft publication: From the United Nations Educational, Scientific and Cultural Organization (UNESCO): Goof Buijs, Manager, UNESCO Chair ‘Global Health & Education’; Nicola Gray, Co-Chairholder, UNESCO Chair ‘Global Health & Education’, University of Huddersfield, United Kingdom of Great Britain and Northern Ireland. Other external reviewers: Gian Luca Burci, Senior Visiting Professor of International Law, Graduate Institute of International and Development Studies, Geneva; Fabrizio Cafaggi, Judge, Italian Council of State; Paola Iamiceli, Full Professor of Private Law, University of Trento From the World Health Organization: Valentina Baltag, Unit Head, Adolescent and Young Adult Health, Maternal, Newborn, Child & Adolescent Health and Aging Department; Darryl Barrett, Technical Lead (Disability), Sensory Functions, Disability and Rehabilitation, Noncommunicable Diseases Department; Carmen Dolea, Unit Head, IHR Secretariat, Health Emergencies Programme; Fernando Gonzalez-Martin, Technical Officer, IHR Secretariat, Health Emergencies Programme; Rachel Hammonds, Consultant (Senior Human Rights Advisor), Department of Gender, Rights and Equity, Office of the Director-General; Erin Kenney, Director a.i., Department of Gender, Rights and Equity, Office of the Director-General; Kritika Khanijo, Technical Officer (Legal), Public Health Law and Policies, Department of Health Promotion; Trinette Lee, Technical Officer, Enhanced Wellbeing, Department of Health Promotion; Ramona Ludolph, Technical Officer, High Impact Events Preparedness Unit, Epidemic and Pandemic Preparedness and Prevention Department; Pauliina Nykanen-Rettaroli, Senior Technical Lead (Human Rights), Department of Gender, Rights and Equity, Office of the Director-General; Boris Pavlin, Unit Head, Alert and Response Coordination, Acute Events Epidemiology Department; Kenneth Piercy, Senior Legal Officer, Office of the Legal Counsel; Kathryn Robertson, Technical Officer (Legal), Public Health Law and Policies, Department of Health Promotion; Elisabet Ruiz Cairó, Consultant, Public Health Law and Policies, Department of Health Promotion; Ryoko Takahashi, Team Lead, High Impact Events Preparedness Unit, Department of Epidemic and Pandemic Preparedness and Prevention; Maria Van Kerkhove, Director (a.i.), Department of Epidemic and Pandemic Preparedness and Prevention, WHO Emergency Programme; Niluka Wijekoon Kannangarage, Technical Officer, Country Capacity for IHR, Health Security Preparedness Department, WHO Emergency Programme; Jun Xing, Unit Head, Country Capacity for IHR, Department of Health Security Preparedness. vAbbreviations and acronyms CEDAW Convention on the Elimination of all Forms of Discrimination Against Women CERD International Convention on the Elimination of all Forms of Racial Discrimination CRC Convention on the Rights of the Child COVID-19 Coronavirus disease 2019 ICESCR International Covenant on Economic Social and Cultural Rights OHCHR Office of the United Nations High Commissioner for Human Rights PHSM Public health and social measures SARS-CoV-2 Severe acute respiratory syndrome coronavirus 2 UDHR Universal Declaration of Human Rights UNESCO United Nations Educational, Scientific and Cultural Organization UNICEF United Nations Children’s Fund WHO World Health Organization vi Pupils at the private Rupy's school in Kathmandu wear face masks. © WHO / Tom Pietrasik vii Executive summary During the COVID-19 pandemic, countries took an unprecedented number of health emergency measures at the national and subnational levels to protect health and life. These measures were frequently subject to legal challenges, including on grounds that they violated human rights. The COVID-19 public health emergency (2020-2023) has been estimated to have disrupted the education of more than 1.5 billion students, resulting in what the UN High Commissioner for Human Rights has characterized as “the worst education crisis ever recorded” (1). Individuals and groups impacted by health emergency measures related to schools and education often challenged such measures in domestic courts. These courts were then called upon to balance the right to health and life against other human rights and interests. Based primarily on national case summaries from around the world contained in the COVID-19 Open- Access Case Law Database (2), this publication describes legal issues that may arise in designing and implementing public health interventions related to education and schools. It is designed to support robust and proportionate public health practice that respects human rights. Considerations articulated from the case law include the following: School closures 1. the nature and extent of the right to education in the context of school closures (the right is subject to limitations); 2. the impact of the school closure measure on access to and quality of education, as well as other impacts on children’s wellbeing, such as health, including mental health; social consequences; exacerbation of inequalities and economic impacts; 3. the strength of scientific evidence and expert opinion regarding the risk to students, teachers and staff, and communities of SARS-CoV-2 transmission in schools, the measure’s efficacy, as well as whether the measure is timebound and subject to regular review. Remote learning: 1. Adequacy of remote learning modalities, including: a. the degree to which the remote learning modality is suitable and appropriate to the context; b. whether students and teachers have access to suitable resources and tools they need to enable effective remote learning; c. the degree to which remote learning plans ensure access to education for students, in particular those with disabilities and other students in vulnerable situations. Measures associated with in-person learning: 1. for testing mandates, the degree to which evidence supports the public health benefit of the testing measure, as well as the availability of alternative remote learning options; 2. for face mask mandates, the degree to which evidence supports the public health benefit of the face mask measure, including for students with disabilities; 3. for vaccination mandates, whether the mandate is in the best interests of the child, the degree to which evidence supports the public health benefit of the vaccine mandate, and the availability of remote learning alternatives.

11. Overview 1.1 Background At the outset of the Coronavirus disease (COVID-19) pandemic, most jurisdictions closed at least some of their schools and other educational institutions to protect public health. Particularly at the beginning of the pandemic, there was a great deal of scientific uncertainty about the epidemiological trajectory and impact of COVID-19 on the health of both children and adults. In the context of this uncertainty, school closures were designed to reduce transmission of Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) and thus protect the health of students, staff, and the broader community. These measures had a severe impact on students’ education, resulting in what the United Nations (UN) High Commissioner for Human Rights called “the worst education crisis ever recorded” (1). An estimated 1.5 billion students in 188 countries were unable to attend in-person classes (3) and “147 million children missed more than half of their in-class instruction over . . . two years – amounting to two trillion hours of lost in-person education, globally” (4). The duration of closures varied widely “ranging from a few weeks to upwards of two years” (5). During this period, many schools transitioned to remote learning options, in particular lessons via the Internet. While this provided some measure of continuity, it left many students behind. The International Telecommunications Union (ITU) estimated that “roughly half the world’s population lacked a functional internet connection in 2020” (5). As a result of this and other gaps, “the United Nations estimated that nearly 500 million learners from pre-primary to upper secondary school had no access to remote learning, of which three-quarters belonged to the poorest households and/or lived in rural areas” (5). This exacerbated existing inequities in education. School closures and the shift to remote learning disproportionately disrupted the education of, among other groups, ethnic and cultural minorities as well as Indigenous Peoples (5, 6), girls (5, 6, 7, 8, 9), students in rural and low-income settings (1, 5), students with disabilities (1), and “students with parents with low levels of education” (5). The World Bank noted a “remote learning paradox” in which “governments are prioritizing online solutions to minimize learning losses. However, the students who are most at risk of learning losses cannot access online solutions” (10). As the pandemic evolved and became better understood, schools began to reopen. In most jurisdictions, return to in-person learning was conditioned on the implementation of precautions and countermeasures, such as requirements related to handwashing, face masks, physical distancing (including quarantine and isolation), testing, and vaccinations (when they became available). A United Nations Children's Fund (UNICEF) survey of 132 countries found that 98% of jurisdictions’ guidance included at least one measure to reduce virus transmission and 90% included at least five measures (11). 1.2 Purpose and Terminology Purpose Drawing on the experience of COVID-19, this publication describes legal issues that may arise in designing and implementing public health interventions related to education and schools up to the secondary level (and excluding tertiary education, e.g. university level). It is intended to aid legal advisers, policy- and decision-makers at the national and sub-national levels designing health emergency measures that affect schools and education by assisting in an assessment of the legal implications of different options. Terminology This publication addresses a selection of measures countries have taken to limit the spread of COVID-19 and reduce the impacts of infection on the population. These include both public health and social measures (PHSM) (12) — including school closures, face mask mandates and testing mandates—as well as medical countermeasures, including vaccination. For ease of reference the term “health emergency measures” is used throughout this publication to refer to both PHSM and medical countermeasures. 21.3 Scope and Limitations This publication draws on relevant data sources (explained below) to describe legal issues observed in international and comparative law that are: 1) of particular relevance to legal advisers, policy- and decision-makers in the design or implementation of a specific type of public health intervention and 2) generalizable across jurisdictions. It does not cover all issues that are relevant in all jurisdictions. By examining how courts in practice adjudicate challenges to public health measures, it is intended to aid and supplement other types of legal review, e.g. comparative legislative and regulatory analyses. The paper is limited by the data available from the reference sources as of 15 March 2023, representing cases from March 2020 to the end of January 2023. The case summary database from which national case law is drawn, while intended to be representative, is not comprehensive. While every effort was made to ensure the accuracy and completeness of the case summaries in the database, they are summaries rather than the official text. Moreover, in some cases judicial processes are ongoing and the data may not reflect the final adjudication of the legal challenge. Finally, the scope of this paper is limited to claims that have been formally legally adjudicated, which may systematically under-represent certain groups that lack the economic means to bring a case, lack standing in a jurisdiction, or face discrimination or other barriers to access to justice. This publication describes legal considerations relevant to different policy options or approaches to a given type of public health intervention based on a series of legal cases contained in a reference database and other supplemental sources. It does not provide the opinion of the World Health Organization (WHO) concerning the lawfulness or effectiveness of a given intervention or approach to a public health issue, nor does it provide any opinion or view on the status of any national or international legal system, or any recommendations regarding any domestic law system or approach or normative principles. Nor, for the avoidance of doubt, does this publication provide any legal advice or opinion, including for any specific case, from the World Health Organization. These limitations, and the fact that national laws, education policies and practices, and other important considerations may vary across countries and legal jurisdictions, should be borne in mind when reviewing the results and considerations presented in this publication. Hand hygiene is an effective and affordable way to prevent the spread of COVID-19 and other diseases. © WHO / Ain Media 31.4 Data sources and methodology Data sources The primary data source for this publication is the COVID-19 Open-Access Case Law Database (“Case Law Database”), hosted by the University of Trento with support from WHO (2). As of March 2023, the Case Law Database contained nearly 2 000 summaries of judicial decisions related to cases challenging health emergency measures adopted in response to the COVID-19 pandemic from all WHO regions, from the period March 2020 to January 2023. A detailed description of the database project and key findings is available in a 2023 article by P. Iamiceli & F. Cafaggi, The Courts and effective judicial protection during the Covid-19 pandemic: A comparative analysis (13). Other data sources include: • International norms and guidance related to health emergencies and education, including from WHO and other relevant United Nations entities • International legal instruments such as human rights treaties and other UN treaties • Academic literature, studies and reports from international organizations with mandates in the fields of public health and/or education Methodology First, the parameters of relevant public health interventions were identified. This included a scoping review and preliminary review of the relevant case law across different jurisdictions. During this stage a focused search was also conducted of other data sources, through the use of key word searches in academic databases and through consultation with relevant experts. Second, once the scope was identified, a comprehensive review was conducted of the Case Law Database and literature to identify legal issues that commonly arose for Member States in the context of schools and education. For national case law, a comparative method was used whereby the legal issues arising in different jurisdictions were grouped and compared with a view to identifying general trends and areas of commonality. In particular, cases tagged in the database as related to the “right to education” or in the topic area “education” as of 15 March 2023 were analyzed. Case studies were in some cases used to illustrate these trends and areas of commonality drawn from a larger group of cases. Through this process, 57 case summaries were identified as relevant to this analysis. Third, the draft legal considerations paper was shared for consultation within WHO in order to examine its accuracy and usefulness, its alignment with WHO guidance, and the impact of the paper on policy issues relevant to the interventions in question. Finally, the publication was circulated for peer-review by a diverse group of external experts in the topic area, including relevant United Nations departments and agencies, academics, and other experts. The peer-review process was intended to evaluate the publication’s usefulness, comprehensiveness and accuracy from a legal perspective. 42. International guidance, state practice and legal norms This section of the publication provides an overview of 1) international guidance related to public health and social measures and schools and education during the COVID-19 pandemic, 2) general characteristics of claims brought before national courts, and 3) frequently cited legal principles identified in national case law in the schools and education context. 2.1 International guidance on PHSM & education and schools during COVID-19 Public health and social measures (PHSM) PHSM are “non-pharmaceutical interventions implemented by individuals, communities and governments to reduce the spread of infectious diseases with epidemic or pandemic potential by reducing transmission of the pathogen” (14). WHO considers such measures to be “a key strategy for reducing the transmission of pathogens”, which “reduce the pressure on the health care system and support the continuation of essential services and businesses” (14). At the same time WHO notes, “benefits of PHSM need to be weighed against unintended negative consequences (intervention burden) for individuals and societies” (15). WHO further states that “escalation of PHSM should always be proportionate and commensurate with the risks and consequences it may have on other determinants of social welfare” (12). WHO issued guidance, first in April 2020 and most recently updated in March 2023, on applying PHSM in the COVID-19 context (12). The guidance listed a number of “core principles when adjusting PHSM” including: considering the impact of measures on the “general welfare of society and individuals”, community consultation, the impact escalating PHSM may have “on other determinants of social welfare”, as well as other factors (12). It reinforces the importance of context, including temporal context, and emphasizes choosing “measures with the highest level of acceptability and feasibility and proven effectiveness” (16, 13). Except in the most severe situations, it recommends that schools should generally remain open (12). Finally, WHO notes that PHSM measures must be considered as a whole, and not just sector-by-sector or by looking at PHSM alone. As stated in the guidance, “PHSM are complementary, act in concert, and in combination with other measures which are required to ensure adequate control of a circulating pathogen, such as SARS-CoV-2” (12). Education and schools In September 2020, UNESCO, UNICEF and WHO issued a joint publication on Considerations for school- related public health measures in the context of COVID-19 outlining principles and recommendations for educational settings for students under 18 years of age (17). The publication recommended that the decision to close or re-open schools should be “guided by a risk-based approach”, taken at a local level, and that full school shutdowns should only be “considered when there are no other alternatives” (17). WHO also issued a number of specific statements and guidance relevant to children and schools, including on children’s use of masks (18), investigation of virus transmission in schools (19), and COVID-19 vaccination for children (20). Where schools are open, the publication recommended a number of measures to prevent infection such as: physical distancing, mask availability and use, proper ventilation, hand hygiene facilities and respiratory measures, cleaning and disinfection and screening and management of illness. The guidance also suggests “adoption of a coordinated and integrated approach to ensure vulnerable children’s holistic needs” (17). 5The United Nations also issued an August 2020 policy brief on Education during COVID-19 and beyond, which outlined broad recommendations to support national education system responses to COVID-19, including mitigating long-term consequences and building equity and resilience in the education sector (21). Finally, OHCHR issued guidance on COVID-19, stating that “the right to education needs to be protected in the case of school closures”, including through “accessible and adapted learning”. It also noted the impact of school closures on girls, who often have more responsibilities in the home, and, in many cases, “already face significant obstacles to go to school” (22). 2.2 International legal framework Right to education The right to education is set forth in a number of international instruments, including the Universal Declaration of Human Rights (UDHR) (23), the International Covenant on Economic Social and Cultural Rights (ICESCR) (24), and the Convention on the Rights of the Child (CRC) (25), among numerous other global and regional instruments. The ICESCR, echoing the UDHR, recognizes “the right of everyone to education”, which includes a responsibility by the State to establish universal and compulsory primary education, to make secondary and higher education accessible to all in particular by the progressive introduction of free education, and to provide available, accessible, acceptable and adaptable education for all (24). The Convention on the Rights of the Child echoes and expands upon these obligations (25). Other international human rights instruments describe rights that are relevant to accessible and inclusive educational opportunities such as the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) (26), the Convention on the Rights of Persons with Disabilities (27) and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) (28). A social worker places face masks on children in an education group run by the Health Fitness Trust NGO for a community residing in a slum in Delhi. © WHO / Tom Pietrasik 6International human rights law recognizes that some aspects of the right to education, along with other economic, social and cultural rights, are subject to “progressive realization”. This means that states have an “obligation to take appropriate measures towards the full realization of economic, social and cultural rights to the maximum of their available resources” while recognizing that “realization of these rights can be hampered by a lack of resources and can be achieved only over a period of time” (29). At the same time, as mentioned by the Committee on Economic, Social and Cultural Rights and the Special Rapporteur on the right to education, various obligations have immediate effect, such as obligations to respect and protect, including through the guarantee of non-discrimination, and the obligations to take deliberate, concrete and targeted steps towards the full realization of the right to education and to move as expeditiously and effectively as possible in that direction. In addition, there are core obligations in relation to the right to education and a strong presumption of impermissibility of any retrogressive measures (29, 30). Derogation and Limitation of rights Under international human rights law, rights may, in some cases, be derogated or limited. Derogation of rights is contemplated in the International Covenant on Civil and Political Rights. Such derogations have been interpreted in the nonbinding, but frequently cited, Siracusa Principles promulgated by the International Commission of Jurists (31). In the context of public health, these Principles note that “Public health may be invoked as a ground for limiting certain rights in order to allow a state to take measures dealing with a serious threat to the health of the population or individual members of the population” (32). However, it states that “these measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured” (32). However, there are no such provisions in the ICESCR that would be applicable to the right to education, and as reiterated by the Special Rapporteur on the right to education, “the right to education suffers no derogation under the ICESCR” (33). Article 4 of the ICESCR states that “The State may subject . . . rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society” (34). In its General Comment No. 14, the Committee on Economic, Social and Cultural Rights further interprets this article in the context of public health: Issues of public health are sometimes used by States as grounds for limiting the exercise of other fundamental rights. The Committee wishes to emphasize that the Covenant’s limitation clause, article 4, is primarily intended to protect the rights of individuals rather than to permit the imposition of limitations by States. Consequently a State party which, for example, restricts the movement of, or incarcerates, persons with transmissible diseases such as HIV/AIDS, refuses to allow doctors to treat persons believed to be opposed to a government, or fails to provide immunization against the community’s major infectious diseases, on grounds such as national security or the preservation of public order, has the burden of justifying such serious measures in relation to each of the elements identified in article 4 (35). The Committee further notes that any such restrictions must be “strictly necessary for the promotion of the general welfare in a democratic society” as well as “proportional, i.e. the least restrictive alternative must be adopted where several types of limitations are available” (35). Finally, the limitations should be “of limited duration and subject to review” (35). The International Commission of Jurists, with the Global Health Law Consortium, also developed a publication on Principles and Guidelines on Human Rights & Public Health Emergencies (33). It notes that if a public health measure results in a limitation to human rights, “such measures must be temporary, for legitimate and specific public health purpose, and have strict regard for the principles of legality, necessity, proportionality, and non-discrimination” (32). 72.3 General characteristics of claims This publication examines decisions by judicial bodies related to claims that a public health measure related to education or schools (or, conversely, the government’s failure to take such a public health measure) violates one or more human rights. Health emergency measures were taken at the national, state/provincial, local and other subnational levels. In examining whether a health emergency measure was compliant with the law, courts took into consideration both how the measure was designed and how it was implemented, in light of the court’s scope of judicial review under relevant law. Because of the rapidly evolving nature of the pandemic, the timing of case collection, judicial constraints during the pandemic, and other factors, many of the decisions in the database pertain to claims for interim relief (i.e. preliminary injunctions) rather than final decisions on the merits of the case. In some cases, proceedings have become moot because of changing circumstances (36), while, in others, courts had yet to finally adjudicate the claim at the time of data collection. 2.4 Process considerations This publication focuses primarily on substantive considerations that courts use to determine whether a measure is lawful. However, many cases are decided on procedural grounds. Procedural requirements for promulgating health emergency measures differ significantly based on jurisdiction and the particularities of the proposed measure. For instance, lack of adequate consultation with the public, students and teachers, other government agencies, and other stakeholder groups was a common procedural ground for overturning measures (37, 38). Staff and students wear face masks at the private Rupy's school in Kathmandu. © WHO / Tom Pietrasik 83. Closure of schools and implementation of remote learning alternatives At the outset of the COVID-19 pandemic, there was less scientific evidence regarding the transmissibility of SARS-CoV-2 and the impact of COVID-19 on children. Therefore, many schools and other educational institutions were closed to protect children, teachers and staff, and to more generally slow virus transmission in communities. In the face of uncertainty, some jurisdictions explicitly or implicitly applied the “precautionary principle,” “anticipatory, preventative actions in the face of uncertainty and the absence of robust historical data” (15). In many jurisdictions, the closure of schools was followed by the move to a remote format such as online classrooms, although the timing of this transition varied. This section of the publication examines legal challenges to these two inter-related measures: school closures and remote learning. 3.1 Intervention: School closures Legal consideration: The nature and extent of the right to education in the context of school closures (the right is subject to limitations) In weighing the impacts of school closures on the right to education, many Courts recognized that the right to education is subject to limitations. For example, the Austrian Constitutional Court noted that school closure during a health emergency is not a prima facie violation of the right to education (39). Similarly, the Constitutional Court of Latvia found that even a temporary decline in educational quality associated with school closures and remote learning does not automatically imply a violation of the right to education, given the need to balance the right to education against other rights (such as the right to health and the right to life) (40). The Italian Council of State considered that the health emergency justified school closures (41). The High Court of Malawi agreed, citing the principle of umunthu (42) to ask, “what future will there be if they are not there to see it?” (43) Legal consideration: The impact of the school closure measure on access to and quality of education, as well as other impacts on children’s wellbeing, such as health, including mental health; social consequences, exacerbation of inequalities and economic impacts Several courts have acknowledged that school closures can significantly impact the right to education, and other human rights (37, 44). Beyond the direct impacts on access to and quality of education associated with school closures, courts have noted, e.g.: • the negative social and psychological impacts of school closures (45, 46, 47); • the economic consequences, including on the work activities of parents (41, 46); • the impact that school closures can have on exacerbating inequalities (47). Considering these negative impacts on the right to education, courts must then consider whether the current health emergency situation nevertheless justifies school closure. Based on this analysis the Administrative Regional Court of Calabria, Italy, for example, concluded that school closures should be an exceptional measure, reserved for situations where less-restrictive alternatives are not available (47). 9Case study: School closure as a violation of the right to education Kenya (High Court of Kenya - Constitutional and Human Rights Division) (37): In this case, the plaintiff claimed that school closures infringed on children’s right to education, impaired their physical activity and fitness, increased exposure to violence and increased drop-out rates. The court overturned the measure, finding that “fundamental rights and freedoms in relation to children’s education . . . have been contravened and grossly violated”. In reaching its decision to overturn the school closures, the Court noted the open-ended nature of the order and the lack of adequate consultation in its development. It ordered the schools to be re-opened within 60 days. Case study: Staggered classes as a less-restrictive alternative to full school closure Germany (Federal Constitutional Court) (48): Plaintiffs objected to a physical distancing requirement, which resulted in staggered classes and students only being permitted to attend in-person instruction once per week. The court balanced children’s right to education (as well as, secondarily, the rights of parents) against the right to health. The court found significant risk that, without this measure, health systems could become overburdened. It also took into account the availability of remote learning options. On balance it found the population’s right to health outweighed the impairment to the right to education. Impacts of school closures on other human rights School closures can have a profound impact on other programs, such as school nutrition programs. The failure of governments to maintain these collateral programs has been challenged in several cases (44, 49, 50). The Chilean Supreme Court found that a school’s obligations to its students arising from the rights to education and food, in this case including free education and nutrition, continue even when schools are closed (44). Case Study: Collateral impacts of school closure South Africa (High Court of South Africa) (49): The Court found that the government was violating children’s rights to nutrition by failing to supply daily meals to all eligible pupils, regardless of whether they were participating in remote learning. The court found that because malnutrition is more likely during a pandemic this right becomes even more salient. Finally, it noted that, even before the pandemic, South Africa was experiencing severe levels of child hunger, and concluded that unless the program was restored the health of millions of pupils was likely to be harmed. The Court therefore ordered the government to fully implement the nutrition program without delay and to provide regular progress reports. Legal considerations: The strength of scientific evidence and expert opinion regarding the risk to students, teachers and staff, and communities of SARS-CoV-2 transmission in schools, the measure’s efficacy, as well as whether the measure is timebound and subject to regular review 10 Courts have considered evidence of health risks (mortality and morbidity, infection rates) to students, staff and the general population associated with in-person learning and of the impact of school closures on reducing those risks. In determining whether a measure was justified, several courts examined the degree to which the decision to close schools was based on high-quality scientific evidence or recommendations of expert bodies on the potential harm to health and life posed by COVID-19, as well as the efficacy of school closures in reducing the risk (51, 52). The standard of review and extent to which evidence is required (or to which deference is granted to government) varies from one jurisdiction to another. For example, a German court endorsed the precautionary principle, arguing that where scientific evidence is unclear (as with a novel virus, like SARS-CoV-2) it is appropriate for governments to take strong measures to protect their populations (53). In several cases, courts approvingly noted that measures were of a pre-determined, limited duration and/ or subject to frequent review based on changing epidemiology or scientific knowledge. Two German courts examining school closure measures favorably cited these factors, concluding that measures with these features were well-balanced, and that they did not impermissibly infringe on other rights (46, 54). 3.2 Intervention: Remote learning measures Remote learning refers to education that occurs “when the learner and the instructor . . . are separated physically and hence cannot meet in a traditional classroom setting” (55). This encompasses online classes, television and radio broadcasts, materials sent by mail, and a large range of other education modalities (55). UNICEF reported that, by August 2020, more than 90% of countries implemented some form of remote learning, whether fully or partially (56). This section examines challenges to the adequacy of these remote learning modalities. Legal consideration: Adequacy of remote learning modalities, including: • the degree to which the remote learning modality is suitable and appropriate to the context; • whether students and teachers have access to suitable resources and tools they need to enable effective remote learning; • the degree to which remote learning plans ensure access to education for students, in particular those with disabilities and other students in vulnerable situations. All remote learning modalities require access to resources and tools. This can include access to a reliable high-speed Internet connection and a device capable of accessing the Internet and displaying the lessons, such as a laptop, tablet or mobile device. Where internet-based learning was not feasible, schools in some cases made use of alternate methods of remote instruction including radio and television broadcasts, or the distribution of printed materials. These modalities can be made accessible to students with disabilities, including through adapted tools (e.g. screen-reader software and adapted keyboards) and accessible media (e.g. captioning or sign language for broadcasts and braille translations of print media). An Argentinian court found that the delivery of textbooks to some students was inadequate as it did not allow interaction with teachers. It therefore ordered delivery of electronic devices and Internet access to all students (57). In another case, an Indian court noted the importance of adopting multiple remote learning modalities to reach as many students as possible, including radio and television broadcasts for those students who may not have access to Internet-based lessons (58). 11 Many courts found that the government had violated students’ right to education by not ensuring that all students had access to electronic devices and/or Internet (57, 59, 60, 61, 62, 63). In considering education access in a rural municipality, the Colombian Council of State emphasized the right of all children to education, but noted that Internet access was subject to progressive realization, therefore subject to resource allocation and policy decisions (64). It concluded that while Internet access was being expanded, the government had a responsibility to deliver free textbooks and printed materials (64). However, in a later case, the Colombian Constitutional Court found that authorities had the duty to immediately provide devices and Internet connections, particularly in impoverished communities (62). It ordered authorities to develop a plan to immediately correct these shortcomings, including temporarily providing computers and Internet access to impoverished families to enable remote learning (62). The Italian Council of State found that accommodations for students with disabilities, such as learning integration plans, must be continued and adapted to the context of remote learning (65). An Argentinian court also found that additional accommodations, such as remote assistance to adapt to the online environment, might be required (66). The Italian Council of State further noted that the rights of students with disabilities to an inclusive education is only strengthened in the pandemic context (65). Courts have, however, recognized limits to the accommodations schools must provide where doing so would entail an undue burden. For instance, a United States Court denied a request for an in-person aide for a student with disabilities where the family had declined the assistance of a remote aide (67). In addition, some courts have recognized vulnerability based on students’ individual situations. In two related cases, brought on the Indian Supreme Court’s own initiative (68), the court emphasized that special measures must be taken for children who had lost their parents to COVID-19. The court ordered special protections and educational measures for such children and directed the District Magistrate to personally meet with each of these children to evaluate their health and educational needs (69, 70, 71). Case Study: Protection of students with disabilities in remote learning mandates Slovenia (Constitutional Court of Slovenia) (38): Parents of children with disabilities brought a legal challenge to a remote learning mandate, which they argued failed to adequately define the methodology for remote learning and did not include safeguards for children with disabilities. The court agreed with the parents, finding that the lack of safeguards and the failure to set limits on the duration of the measure – along with procedural failures, such as insufficient consultation with the expert community or public – resulted in the mandate being unconstitutional. Due to the potential for greater harm if the measure were immediately repealed, the court gave the Slovenian National Assembly two months to remedy the law. 12 4. Re-opening of schools and measures associated with in-person learning As the pandemic progressed, and the public health situation was better understood, schools began to re-open. By the end of 2020, UNESCO estimated that 12% of students remained affected by school closures. By the end of 2021, the percentage had fallen to 1% (72): As schools re-opened, they took a number of PHSM ranging from environmental measures (such as ensuring adequate ventilation) and social measures such as adjusting the timing and structure of classes to more intensive measures such as mandates for regular SARS-CoV-2 testing, mask wearing and vaccination against COVID-19. This section focuses on legal challenges to these three more intensive measures: testing, mask and vaccination mandates, which were selected because there was sufficient case law challenging such measures to support analysis. It is also important to note that, although there is a substantial volume of case law on these three countermeasures generally, fewer cases were identified specific to these measures as applied to the schools and education context. Only these latter context- specific cases are discussed below. Moreover there was significant disparity in access to countermeasures both among and within countries (73), which may have impacted the nature and geographic distribution of legal challenges. Finally, students with disabilities sometimes faced greater risks from COVID-19, as well as risks and challenges in complying with or adopting countermeasures (74). 4.1 Intervention: Testing mandates Testing for SARS-CoV-2 is designed to reduce the risk and scale of virus transmission in schools and, by extension, in the wider community. Testing strategies include both symptomatic diagnostic testing as well as routing screening of asymptomatic groups, test-to-stay strategies, among others (75). In the context of schools and education, legal challenges were made in some countries to the implementation of testing mandates, most often on the grounds that the measures violated the right to education. Legal consideration: The degree to which evidence supports the public health benefit of the testing measure, as well as the availability of alternative remote learning options A German court applied a balancing test to deny a challenge to mandatory, twice-weekly testing of students. It noted that testing was not per se compulsory, but only necessary if a student wanted to attend in person (76, 77). Moreover, it considered that testing was appropriate and necessary to ensure schools could remain open (76). The Austrian Federal Constitutional Court favorably cited scientific evidence from reputable institutions (e.g. the Science Hub of Vienna) that demonstrated the efficacy of the measures, which was used to support the development of mandatory testing measures (78). Another German court denied a claim on behalf of a six-year-old child, challenging mandatory testing. The court favorably observed the time-limited nature of the measure and applied the precautionary principle where evidence is not conclusive, noting that “discretionality was justified by the absence of uniform, reliable, scientific knowledge and the lack of uniformity of views regarding strategies to counteract the disease” (53). 13 4.2 Intervention: Face mask mandates Face mask mandates are another measure used to control transmission of the SARS-CoV-2 virus. They were often used in the school context in confined settings or where adequate physical distancing was not feasible. Legal consideration: The degree to which evidence supports the public health benefit of the face mask measure, including for students with disabilities Courts in several cases favorably considered the fact that wearing face masks could help prevent school closure (78, 79, 80). A Swiss court cited the importance of face masks to protecting the general population from the spread of COVID, not just of protecting the students and staff of the school (81). In addition, several courts were unconvinced that wearing face masks had significant negative impacts on children’s physical or mental health (81, 82). A United States Court dismissed a claim that, because masks conceal teachers’ and classmates’ facial expressions and muffle or alter voices, they violate freedom of expression. The court used a reasonableness standard to find that the state had good cause to regulate this conduct and it was not sufficiently particularized to be considered protected speech (83). Case Study: Face masks France (Council of State) (82): Plaintiffs challenged a requirement for students aged 6-10 to wear face masks at school and in extra-curricular facilities claiming interference with freedom of movement, right to private and family life, personal liberty, freedom of assembly, right to education and best interests of the child. The Court denied the claim. It found that the measure not only benefited public health but also supported the right to education by allowing schools to remain open given the impossibility of physically distancing young children. It also favorably noted that the French High Council of Public Health had recommended that this age group wear masks, and other expert organizations, such as WHO and UNICEF, did not contradict this advice. In several cases students with disabilities have successfully challenged bans on mask mandates (i.e. protected the right of schools to impose mask mandates), based on, inter alia, the rights of persons with disabilities and the right to education (84, 85). Case Study: Face masks and students with disabilities United States of America (District Court for the Middle District of Tennessee) (86): The plaintiffs in this case were a group of students with disabilities that put them at greater risk of serious health effects from COVID-19. These students sued to prevent the school from enforcing an executive order that allowed parents to opt-out of mask mandates for their children. The court granted a preliminary injunction, stating that the executive order left students “unable to enjoy educational services, programs, and activities without placing their lives at risk due to their disability”. 14 4.3 Intervention: Vaccine mandates Vaccination is intended to protect the recipient of the vaccine from severe illness, hospitalization and death. There is also some evidence that vaccination lowers the risk of virus transmission to others (87). Many governments chose to roll out vaccines to segments of the population in stages, based on risk group, and many regulatory agencies approved vaccines first for administration to those over 16 years of age, and only later to younger children (88, 89). Teachers were considered a priority group in 72% of countries’ national vaccine rollout plans (90). As COVID-19 vaccines became increasingly available, some schools began to mandate teachers and staff (91), and in some cases students (92), to be vaccinated in order to participate in in-person classes. Outside of the COVID-19 context, many countries have implemented vaccine mandates in schools and there is an extensive body of case law related to those mandates (93). The discussion in this paper covers only challenges to vaccine mandates relating to COVID-19, including mandates involving children and teachers, staff and visitors. Legal consideration: Whether the mandate is in the best interests of the child, the degree to which evidence supports the public health benefit of the vaccine mandate, and the availability of remote learning alternatives A Brazilian court denied a claim made by the mother of a student who challenged mandatory vaccination as a violation of the student’s right to education. It found the vaccine mandate for students to be “constitutional, legal, and scientifically based measure based on normative analysis” and therefore justified (92). It further noted that receiving the vaccine was in the child’s best interest, and the parents had no legal right to prevent their child from being vaccinated (92). Similarly, the Costa Rican Supreme Court of Justice declined to overturn a vaccine mandate for visitors to the school, ruling that the mandate was in the best interests of the children (94). In a United States District Court case, four Michigan school districts challenged a Department of Health and Human Services regulation that required staff at early childhood education centers to be vaccinated in order to receive funding. The court found that public interest strongly weighs against the injunction given the important risk of spread of COVID-19 (95). John, 14 during a exam at Ober Boys Boarding (Secondary). He is a visually impaired student at this educational institution. © WHO / NOOR / Sebastian Liste 15 5. Conclusion The discussion above illustrates how courts, through their interpretation of law and rights, play an important role in shaping public health interventions in an emergency context. They have interpreted the nature and extent of human rights, such as the right to education, in the national and subnational context. Some have helped to ensure that health emergency measures are based on scientific evidence and developed through consultative processes. Critically, they have provided a venue for individuals and groups and those living in vulnerable situations to advocate for their interests, and to ensure that health emergency measures reflect their specific needs. Three notable themes emerge from the courts’ analyses, and from the legal considerations identified above: • First, in balancing rights many courts looked to the proportionality of the health emergency measure to assess its legality. In determining whether a measure is proportional, courts considered such factors as: the extent to which it is based on robust scientific evidence and/or expert opinion (or, in some jurisdictions, on the precautionary principle), whether it is narrowly tailored to meet the objective, and / or whether the measure takes the least restrictive means to achieve its health objectives, among other factors. • Second, many courts expressed sensitivity to the rapidly evolving context of a health emergency. During such emergencies – particularly those like COVID-19 that arise from a novel pathogen – there is often an initial lack of knowledge and scientific evidence regarding the threat and the efficacy of countermeasures. In addition, certain countermeasures—such as diagnostics, treatments, or vaccines – may need to be researched and developed and are not immediately available. In this context, some courts have expressed an increased deference to public health authorities. In addition, in determining proportionality, some courts have expressed the need for measures to be time-bound and subject to regular review in order to adapt to changing contexts. • Third, many courts considered the impact of measures on the rights of groups and persons in vulnerable situations. Courts noted several ways in which measures could negatively affect such rights, such as by disrupting services for persons in vulnerable situations (whether directly or indirectly), failing to include mechanisms to address the particular needs of such persons, or exacerbating existing socioeconomic inequalities/inequities, among others. The legal considerations drawn from court decisions, and the analysis underpinning them, can support legal advisers, and policy- and decision-makers to develop future public health measures that are both effective and respectful of human rights. 16 Annex: Frequently cited legal principles In the cases analyzed in this paper, courts frequently referenced the following legal principles: Legal tests and standards of review Where a measure seeks to protect a human right (e.g. the right to health) and it is challenged on the grounds that it impermissibly infringes on another human right (e.g. the right to education) or other interest, courts must determine how to weigh these rights and interests. The test and reasoning courts apply will vary significantly depending on the jurisdiction as well as on the facts of the case. Examples of common categories of tests include proportionality tests (whether a restriction is “proportionate” in light of the circumstances) (96), and a reasonableness standard (whether the measure “can be justified vis-à-vis the objectives targeted and the rights to be protected”) (97). Courts may also apply a wide range of balancing tests in which human rights are explicitly weighed against other interests (98). Other tests, such as balance of convenience, may apply where a court is determining whether to grant a claim for interim relief (such as for a preliminary injunction). Where there is an arguable case, courts apply this test by weighing the impacts of granting or not granting the relief upon the different parties. Preference for measures that have the least impact on the enjoyment of other rights Courts frequently favorably cite the fact that a measure, while curtailing a right, is a preferable alternative to a more restrictive measure that would otherwise have to be taken. For example, requiring students to wear face masks (99, 100) or attend class on only certain days of the week (101) have been seen as preferable by courts to the risk of full school closure. Deference to other branches of government on policy matters, particularly in the con- text of emergencies The doctrine of separation of powers is common to many jurisdictions. In such jurisdictions, courts often defer to legislative or executive branches on matters of public policy. They frequently express reluctance to step into the shoes of legislators and policymakers who may have greater expertise and more democratic accountability. This includes deference to administrative agencies within the scope of their authority (e.g. to public health agencies on health measures). Where a measure is taken in an emergency context, courts may give the executive branch an even greater margin of deference than usual, citing the exigencies of the emergency, the technical expertise needed to make decisions, and (in some cases) the greater democratic accountability of other branches of government (102). Thus public health agencies may be given an especially large margin of discretion in the context of a health emergency. Best interests of the child The best interests of the child standard is frequently applied in cases related to education and schools, when courts consider the legal rights of minor students (103). The United Nations Convention on the Rights of the Child requires that, “in all actions concerning children . . . the best interests of the child shall be a primary consideration” (104). In General Comment 14, the Committee on the Rights of the Child noted that the principle includes “secur[ing] the holistic physical, psychological, moral and spiritual integrity of the child and promote his or her human dignity” (105). Many jurisdictions have adopted the general legal principle of best interests of child, although the specificities and terminology differ. 17 Interaction between international law and domestic law International law may be binding or non-binding in nature. Treaties, which are a form of binding international law, create legal obligations only for States Parties to that treaty. Since not all States are party to all treaties discussed in this document, States’ particular obligations under international law differ. Non-binding guidance tends to have a more general scope, but without legally binding effect. International law may be incorporated into domestic courts’ decisions in various ways. This may happen directly. 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COVID-19 Litigation Open-Access Case Law Database. Germany, High administrative Court Bavaria, 12 April 2021, No. 20 NE 21.926 [website]. Trento: COVID-19 Litigation Open-Access Case Law Database; 2022. (https://www.covid19litigation.org/ case-index/germany-high-administrative-court-bavaria-no-20-ne-21926-2021-04-12, accessed 19 January 2024). 23 77. A Russian court came to a similar conclusion, noting that “the contested provision aimed at a temporary limitation of access to educational institutes ‎but not to deprive the child of the right to obtain an education”. COVID-19 Litigation Open-Access Case Law Database. Russian Federation, Moscow City Court, 28 October 2021, No. 77OS0000-02-2021-021561-88 [website]. Trento: COVID-19 Litigation Open-Access Case Law Database; 2022. (https://www.covid19litigation.org/case-index/russian- federation-moscow-city-court-no-77os0000-02-2021-021561-88-2021-10-28, accessed 19 January 2024). 78. COVID-19 Litigation Open-Access Case Law Database. 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