Berkeley High Students Refuse Medical Testing During Epidemic
In a medical emergency, should individual rights or the good of the community prevail?
2020 has plunged the world into a major pandemic. As COVID-19 has spread across the globe, killing more than a million people, some people have taken this highly-infectious pathogen very seriously; they self-quarantine, practice social distancing, wear masks, and allow the best medical advice to shape their daily decisions.
Others gravitate toward the opposite end of the spectrum; they view COVID as nothing more than a bad cold: they refuse to don masks, avoid gatherings, and restrict their interactions with others. The latter group deems the protective measures imposed by the states to be infringements of their “rights.”
Although it might appear that we are living in a unique age of obtuse behavior, scientific denialism and the promotion of individual rights over the good of the community has a long history in the United States.
One hundred years ago, a conflict over these issues raged in Berkeley, California. If history teaches anything, it is that there is nothing new under the sun.
In late August, 1920, eight female students were trapped in a Berkeley High School locker room. The lock, placed on the outside of the door, “had been sprung” and they remained together for three hours before they were discovered. The eight girls contracted diphtheria. Medical investigators theorized that they had acquired their illness from the faulty plumbing in the high school. The building was, in the words of one doctor, “a veritable haven for disease.”
In fact, it was more likely that one of the girls already had the disease. Diphtheria, like COVID-19, is transmitted through the air. The eight girls became super-spreaders, passing the bacteria on to their classmates.
By the second week of September, diphtheria cases had soared at Berkeley High School. On Sept. 8, 1920, Dr. Ernest Pape, the city’s health officer, arrived at the school and began to test the students.
Seven students — six young women and a boy — refused to submit to Dr. Pape’s test. They weren’t sick and they didn’t need a test to prove that. When reason made no dent in their intransigence, Principal Charles L. Biedenback ordered the students to leave the high school’s premises.
Pape hoped to arrest the outbreak. Five students had already died at Berkeley High. Testing of the compliant students revealed that twenty-five percent of the students and ten teachers had active infections.
Pape conceived a plan that would allow the school to continue to operate: the infected students and teachers would be quarantined in the auditorium. There, classes would continue as normal, with the infected cases sequestered from the rest of the student body.
Unfortunately, the “quarantine within the school plan” proved too difficult to administer, so the health department and high school fell back to the plan of refusing admission to students until they could pass a diphtheria test, proving that they no longer carried the infection.
A San Francisco Examiner editorial praised his quick response and the advances in medicine that had reduced the danger of epidemics. Once, wrote the paper, “life was one quarantine after another; doctors fumbled around with uncertain cures, and people spoke of diphtheria and small pox as certain death.”
“It is different now, and the treatment of diphtheria cases in Berkeley this week is an apt illustration of how a modern and enlightened community handles what otherwise develops into a dangerous epidemic.”
The reporter then praised the prompt closure of the school and the testing of the students that allowed health officials to identify and isolate disease carriers. “Berkeleyans,” concluded the newspaper, “have been wise in their handling of what might easily have become a nervous state of affairs.”
Not everyone agreed.
Seven students continued to refuse to be tested. Principal Biedenback and Dr. Pape refused to allow them to return to school.
Walter N. Fischer, father of Eva Fischer, filed a lawsuit against the Berkeley Board of Education. Eva was one of the seven “conscientious objectors.”
Fischer argued that Dr. Pape had exceeded his authority by demanding that all students take a diphtheria tests. He asked the court for speedy consideration as the seven students were eager to return to their classes.
His lawsuit raised an important question: did Principal Briedenback and the Board of Education have the authority to compel students to be tested. Wasn’t testing an invasion of privacy? Were individual rights more important than the good of the community?
Dr. Pape and the State Board of Health argued that “for the sake of the social group the individuals must accept the inconveniences and even compromises with their consciences.”
The parents scoffed at this rationale. What gave the Board of Education the right to exclude students from school on medical grounds? The members of the board had the limited authority to run a school, and it had transcended proper bounds by demanding students — who had not even been proven sick — to be quarantined at home. The idea that students would have to remain isolated at home until the disease had run its course was intolerable.
On Sept. 20, fourteen students decided to put the board to the test. Although they had been identified as diphtheria carriers, the students arrived to take their places in the classrooms.
Principal Briedenback called the police, and soon officers walked the violators out of the high school. After a short consultation meeting with the Alameda County District Attorney, the police issued a policy statement: they would arrest any student who tried to return to school before passing a diphtheria test.
The next day, the seven “conscious objectors” elected to test the will of the police department by returning to their classes. The six girls and one boy were again led out of the building by Police Officer Frank Waterbury.
He informed the diphtheria deniers that if they remained on school property, he would arrest them for disturbing the peace. The students, after consulting with their attorney, Harold W. Bacon, elected to return to their homes. Attorney Bacon had already scheduled an appearance in Juvenile Court to secure a writ from Judge E. J. Brown that would compel the Board of Education to readmit his seven clients.
The following morning, Thursday, Sept. 23, twelve students who were known diphtheria carriers arrived for morning classes. Once again, Patrolman Waterbury removed the students from the buildings and patiently explained the relevant state health laws. Eleven of the twelve students, having registered their protest, returned home.
One student, John Warren, attempted to re-enter the school. Officer Waterbury promptly arrested him, and took him to the police station. The district attorney chose not to press charges — waiting to see how the court would rule on the question the following morning — and called Warren’s mother instead.
When Mrs. Martyn Warren arrived, she told reporters, “I had thought the whole affair was settled and that it was all right for my son to attend school. I am not sure that I would have had him act as he did, in any event.” She then drove young John home.
Court Hearing Derailed
Dr. Pape had begun his own media campaign. He told the newspaper reporters that if the courts supported the health department, he intended to have the police arrest the students and parents who had been returning to the school without testing.
A large crowd packed the courtroom on Friday morning. Unfortunately, before the hearing could begin, Dr. Pape noticed one of the high school’s teachers, Miss Laura Frank, seated among the spectators.
Miss Frank was a known carrier of diphtheria, and her presence in the courtroom endangered the health of everyone around her. When informed, Judge Brown ordered the courtroom cleared and rescheduled the hearing for the following week.
The medical officials, frustrated by the postponement of a decision, moved to increase the pressure on the students and parents.
H. H. Dickie, the secretary of the State Board of Health, sent a telegram to Dr. Pape, ordering him to immediately quarantine the homes of the seven students who continued to refuse testing. They were to remain isolated in their homes until they passed a diphtheria test.
Police officers visited the homes of the seven affected students and posted quarantine placards on the doors.
Mrs. Edmond Mott, mother of Vera Mott, told reporters that Dr. Pape had no right to place quarantine signs on her property. Her daughter had none of the symptoms of diphtheria.
Another mother, Mrs. A. H. Allen, added her voice to the protest: who was Dr. Pape to place signs on her private property? The parents of the other five girls, inspired by the two mothers, also tore down the quarantine signs.
Police Chief August Vollmer sent one of his officers, H. T. Lee out to replace the signs. Lee told the parents that they would be arrested if they removed the signs again. Dr. Pape issued his own warning to the community: any student who tried to reenter the high school on Monday morning with having passes a diphtheria test would be arrested and transported to the city hospital.
They would be isolated and forced to either take a test or spend two weeks in a supervised quarantine.
Monday morning, Sept. 27, six of the seven diphtheria objectors entered the high school and took seats among their classmates. Officer Waterbury escorted the six girls from the school and informed them that they were under arrest and must come to the police station.
Mrs. Allen, mother of Vera Allen, demanded to see a warrant. Without that piece of paper, she had no intention of surrendering her daughter to the police. Officer Waterbury and his colleagues did not have a warrant. They returned to the station to consult with Chief Vollmer.
The six girls went back into the school.
The police returned, armed with warrants. They again removed the girls from the school.
Out on the sidewalk, Mrs. Allen placed a firm hand on her daughter’s shoulder. “You shall not arrest my daughter,” she said to Officer Ingersoll. “We are entirely within our rights.”
Ingersoll disagreed. “If you interfere with the arrest of this girl,” he said, “I shall have to arrest you too on a charge of interfering with an officer.”
Mrs. Allen released her daughter. The six girls were then transported to the police station and charged with a violation of section 377A of the State Penal Code.
This law made it a misdemeanor to violate quarantine regulations. It carried a maximum penalty of $1,000 and a year of incarceration. After they were booked, the girls were taken to the Oakland Detention Home. Their parents refused to apply for bail; the girls intended to remain in the Home until their trial, as an act of protest against the coercive overreach of the State Health Department.
Juvenile Court Judge Lincoln Church thwarted this plan by ordering them released on their own recognizance at the end of the day. The conscientious objectors were returned to the custody of their parents and ordered to remain, quarantined, in their own homes until their trial.
The six girls continued to refuse testing, but they did promise that they would stay away from the school until their court case was heard at the end of the week. Their parents, in a joint statement to the press, announced their full support for their daughters and pledged to “fight to the bitter end.”
Meanwhile, Police Judge Robert Edgar was filling out an arrest warrant for Laura Culver, aunt of Dorothy Norton. Culver had torn down a quarantine sign in Officer Lee’s presence, a defiant violation of the quarantine regulations. She was arrested later that afternoon, booked, and then released after posting $100 for bail.
Individual Rights vs. the Public Good
On October 1, a Berkeley middle school student, eleven year old Peter Boriana died from diphtheria.
Although too young to attend Berkeley High, health department officials suspected that he contracted the illness from a carrier in his neighborhood. His death brought the toll to six, underlining the importance of forceful action against the epidemic.
If the recalcitrant students at Berkeley High had submitted to testing, if the infected had been properly quarantined, then perhaps the disease’s spread would have been checked and Peter Boriana would have enjoyed a long and prosperous life. Although there had been no new cases at the high school, Dr. Pape told reporters that it was essential that the seven students who had endangered their classmates be prosecuted.
“The law must be obeyed; and orders which the local and state health authorities have given have been for the best interests of the community. The courts must decide whether or not we are vested with that authority,” said the doctor.
Walter Fischer, father of Eva Fischer, was also hankering for a court fight. “These issues include the rights of authorities to arrest and quarantine apparently healthy people.” Did the state, even in a public health crisis, have the right to restrict an individual’s rights to protect the rest of the community?
Although both sides had dug into entrenched positions, the resolution of the case of the Berkeley seven came rapidly. After a couple of delays, Juvenile Court Judge Church dismissed charges against the students.
The still-untested girls and teacher Laura Frank again attempted to enter the high school. Principal Charles L. Biedenback promptly suspended the students and Frank. They were not to return, stated Biedenback until they complied with the Health Department order and obtained a certificate from Dr. Pape.
Apparently, they had wearied of the fight. The eight presented themselves to the doctor the next morning. He did not examine them, but simply issued the certificates that allowed them to return to school.
Walter Fischer groused that his daughter had missed so many classes that he was inclined to sue both the health department and the high school, but he did not pursue further litigation.
Culver to the Appeals Court
The same could not be said about Laura Culver, the aunt of untested Dorothy Norton.
On October 14, she had her trial for tearing down the quarantine sign Officer Lee had placed on her home. It seemed to take more time to select a jury than to actually try the case. In less than a day, the jury decided that her defiance violated the state quarantine law.
Judge Robert Edgar sentenced Culver to five days in jail or a $50 fine. She, indignantly protesting the court’s overreach, chose the jail term and then instructed her attorney to initiate habeas corpus proceedings to fight the decision. She did not intend to back down.
Her attorneys appealed the lower court decision. In November, Superior Court Judge James Quinn ruled that the state did have the right to impose quarantines on citizens. He refused to overturn Culver’s conviction.
Culver wasn’t finished. Her attorneys vowed to fight her cause all the way to the Supreme Court.
The case would not get that far.
In a stunning reversal, the California Appeals Court overturned the decision of the two lower courts in December 1920. The appeal court judges stated that because there was no specific law in the California code for placarding “contacts” as opposed to proven cases, the health department had no right to impose a quarantine on the Culver house.
Because Dorothy Norton had refused to take a diphtheria test, she could not be proven to have a case of the disease. The law only allowed quarantines for proven cases.
Because the Health Department had extraordinary powers to restrict individual liberty in times of epidemics, maintained the justices, it was essential that the department stay within the established guidelines. There was no law or published department policy that allowed them to impose quarantines on suspect persons who refused testing. Until that law was formulated, the action of the health department officers was illegal, as was the decision to arrest Laura Culver for opposing the department’s extraordinary measures.
Although the verdict was a victory for Laura Culver, her exoneration hinged on a technicality: if there had been a law, or even a Health Department policy that allowed for the quarantine of suspected carriers, she would not have prevailed.
Ultimately, neither of the cases resolved the fundamental question: can the state restrict individual rights to protect the larger community?
A century later we are no closer to an answer.
Sources: San Francisco Chronicle, Sept. 25, 1920; San Francisco Examiner, Sept. 10–29, 1920; The Recorder (San Francisco), Sept. 18,1920; Oakland Tribune, Sept. 22–25, Dec. 23, 1920