Message to Foothill-De Anza Community College District Board of Trustees

By Alex Eulenberg

Santa Clara County Homeowner since 1998

sent March 26, 2023

Permission is hereby given by the author to reproduce and alter this letter in any form, with or without attribution.

Executive summary: you need to drop the vaccination requirement now. It protects no one, not even the immunocompromised. It never did. Ignorance of this fact becomes less excusable every day. Every day the policy remains in place you are exposing yourselves more and more to litigation, not only for violating the civil rights of those in the community, but also for violating your stated contract with the public by overstepping the Board Policy, enforcing a requirement of the non-FDA-approved COVID-19 booster doses, in an Administrative Procedure that the associated Policy did not permit.

I spoke at the March 13 Board meeting in favor of rescinding BP 3507 “COVID-19 Vaccination Interim Policy requirement” as it is unfair to bar from the facilities the very people and their families who paid to construct them, just because they haven’t had the latest COVID-19 booster. You cannot say that lack of COVID-19 vaccination poses any kind of health threat to anyone. Let me reiterate that: other people having COVID-19 vaccination does not protect even the immunocompromised from catching COVID-19 as there is no proof that the vaccinations prevent either infection or transmission of the disease. This has been public knowledge since as long as the vaccine has been approved, as noted in the Food and Drug Administration’s Q&A on the approved vaccine:

Furthermore, the CDC, while they may recommend the vaccines to individuals, does not advise in its guidance for educators or school administrators to exclude unvaccinated people from in-person activities:

So going by our trusted federal agencies, there is no reason to have this policy. The policy protects no one while it strips opportunities away from a large portion of the population.

As far as I can tell, all health authorities have backed away from vaccination requirements because they know such policies do not in fact protect people. They don’t do any good and they unnecessarily deprive many people of the community interaction and services they need.

You are basically, against the accepted science, attributing an immune deficiency to unvaccinated people, regarding and treating them as especially infectious and contagious, when you have no evidence that they are, and then subjecting them to adverse differential treatment. This falls under the definition of illegal discrimination on the basis of a disability, as defined in the Americans With Disabilities Act As Amended in 2008, as well as the California Unruh Civil Rights Act. You will be liable for illegal discrimination, the same way you would be if you were to require a negative AIDS test.

Since I spoke at that meeting I have become aware of another concern, which arose after I read the policy carefully and then saw on the De Anza college web site that students are required to receive a COVID-19 “booster” before attending in-person classes if eligible.

The policy, however, adopted August 2, 2021, requires only that all students and staff be “fully vaccinated.” At the time there were no booster shots available to the general public, and “fully vaccinated” was defined by the CDC as having received the second of two primary series doses. And when boosters were authorized for emergency use by the FDA in November 2021, and the CDC started to recommend them for the general public, the CDC did not change the definition of “fully vaccinated.” In fact in January 2022, the CDC made a statement that the definition of “fully vaccinated” was not changing, and that “up to date” is the term to be used to refer to having had the latest COVID-19 booster if eligible. It was a conscious decision to keep the term with its original meaning so as not to affect existing vaccination requirements. See:

Still today, the CDC web site states unambiguously: “Yes, you are fully vaccinated even if you haven’t gotten your booster yet. The definition of fully vaccinated does not include a COVID-19 booster.”

I made an inquiry of the De Anza College communications office as to why boosters were being required, and was given the explanation that the Policy's corresponding “Administrative Procedure” is what extended the requirement to boosters, AP 3507, which I understand has been revised several times.

In one of the revisions, the requirement was extended from “fully vaccinated” which does not include boosters, to “up to date” which does. Not only does this go beyond the policy, which only mentions a requirement to be fully vaccinated, it also violates the policy’s intention of only requiring what has been approved by the FDA. To date, not a single COVID-19 booster dose has been approved by the FDA for anyone of any age or condition.

To quote the policy, BP 3507 says specifically that the required vaccine must be readily available in the approved form:

The vaccine requirement is effective on each campus and in Central Services on the later of (1) the first day of the fall 2021 quarter (September 15, 2021, for employees and September 20, 2021, for students); or (2) when a COVID-19 vaccine receives full U.S. Food & Drug Administration (FDA) approval and is readily available.

It is clear that the intent of the Policy was to ensure that only a “fully approved” vaccine be required, and in early August, the idea of boosters for young adults was not even on the horizon, and the wording of the Policy, requiring that employees and students “receive a COVID-19 vaccination” and an approved one at that, shows this.

A requirement for employees and students on campus to take a non-FDA-approved vaccine dose that is not covered under the definition of “fully vaccinated” doubly goes beyond policy.

The authors of the amendment to the Administrative Procedure AP 3507 that added a requirement to take boosters were well aware that the booster doses were not FDA-approved, and that the intent of the policy was only to require FDA approved vaccines. They added “administered under Emergency Use Authorization” to the definition of “Approved Vaccine” in the Procedure. Sorry, whether or not a vaccine dose is fully approved by the FDA is not something that one can later redefine as a matter of administrative procedure. Importantly, an “FDA approved” vaccine has been declared safe and effective for the intended use by the FDA, whereas an “Emergency Use Authorized” one has not. No one at DAFH has the authority to overrule the FDA on the matter of safety and effectiveness. The policy was created with the clear intent that no one would be required by that policy to take a vaccine that was not approved by the FDA.

So the the booster requirement, as an implementation of BP 3507, is null and void on two counts, boosters are not part of the definition of fully vaccinated, and they are not FDA-approved.

Again, as I said when addressing the Board at the March 13 meeting, the Board must stop the colleges from enforcing an illegal and out-of-policy requirement. Use your powers as administrators and cancel the enforcement of this policy now. You don’t need anyone’s permission for this. The policy violates state and federal law, and the procedure does not follow the policy. Strike them both down.

I look forward to a unanimous vote to declare BP 3507 and AP 3507 null and void at the next Board meeting. I also advise that you establish a committee to make recommendations to the Board regarding the compensation of any student or employee who suffered injury as a result of the erroneous enforcement of the Policy.

Your neighbor,

Alex Eulenberg