Can colleges require students to be vaccinated?

The intersection of public health and politics is crossing as it relates to college students returning to campus for the 2021 fall semester. Some colleges and universities have released statements of intentions to require that students be vaccinated. The legality of such a requirement is a bit murky at this point.

The University of Notre Dame announced last week it will require the COVID-19 vaccine as a condition for enrollment in the 2021-22 fall semester. The university will, however, allow religious and medical exemptions. Undergrads, graduate, and professional students must be fully vaccinated to attend classes. There will be accommodations for those students unable to get the vaccinations before the fall semester begins and also for those who receive vaccinations that are not approved in Indiana, which applies to international students. A letter from University President the Rev. John Jenkins was sent to the campus community.

“The safety of the University and local communities is always our highest priority,” Father Jenkins said. “Requiring students to be vaccinated for COVID-19 is a new and important addition to our health policies, one that we believe will enhance public health at Notre Dame and in our community, while also contributing to our ability to return to a more vibrant campus environment.”

The university is holding vaccination clinics for current students to allow them the opportunity to receive their shots this month. Second doses will be given at the end of the month through the beginning of May. Notre Dame, like most schools, also requires other vaccinations of students – hepatitis B, meningitis, measles, mumps, rubella, tetanus, and chickenpox. Last fall the university required all students to receive the flu vaccine, again with medical and religious exemptions. The COVID-19 vaccine is being added to the list of required vaccinations.

Other universities have made similar announcements, including Brown University, Northeastern University, Cornell University, and Rutgers University. All of these schools also will allow medical and religious exemptions. St. Edward’s University, a small, private university in Austin, was one of the first to announce such a decision. For those opting out, they must obtain a notarized exemption document, as is needed for other required vaccines such as the meningitis shot. Students who don’t comply by providing documentation by September 1 will not be allowed to live on campus, have access to campus facilities, and be limited in what courses they can take.

This is a way for students to get back to a more normal way of life on campus, according to college administrators. Colleges are planning for more in-person activities this fall, including most classes. Dormitories are opening but will be limited to one student per room.

There are questions about whether or not college administrators can require COVID -19 vaccinations and that looks to be a state-by-state discussion. In Texas, for example, St. Edward’s University is located in Austin but it is a private school. Governor Abbott issued an executive order that would prevent all government agencies, including public universities, from instituting COVID-19 requirements for services. The order also applies to organizations that receive public money. St. Edward’s says it is in compliance with Abbott’s order. The University of Texas, a public university, would not be able to require vaccinations under this order.

Elizabeth Sepper, a professor of law at the University of Texas at Austin who studies topics related to health, bioethics and religious liberty, said there’s “no question” that the order “constrains public universities in Texas from requiring proof of vaccination” for enrollment or housing. She said that the degree to which it constrains the state’s private colleges is contingent on whether they receive state or municipal funding.

Sepper lamented what she described as the “politicization of what really is an issue of public health and safety.”

“Colleges bring together people who have contact with lots of different age groups,” Sepper said. “They live together, they party together, they take classes together. It’s a no-brainer that this is a very low-hanging fruit for the sort of public health efforts we always make.”

St. Edward’s amended their requirement after Abbott’s executive order was signed because it receives federal money by way of student aid. Students can decline to share their vaccination status.

Justin Sloan, vice president for institutional effectiveness and planning at St. Edward’s, said students who request an exemption or choose not to disclose their vaccination status will likely be subject to different health and safety protocols regarding quarantining and asymptomatic testing than their vaccinated peers. He stressed, however, that how those protocols will be different for vaccinated versus other individuals will depend on federal, regional, state and American College Health Association guidance this fall.

“We feel that, yes, it is still a COVID-19 vaccination requirement, and based on individuals’ choice through that process, we’ll ensure that we’re able to maintain and support their individual health as well as the health of all students, faculty and staff on campus,” he said.

What sets the COVID-19 vaccination apart from the standard vaccinations required by universities and colleges is that it falls under the emergency use authorization (EUA). There will likely be legal challenges to the requirement as there is no legal precedent.

“Colleges have the legal authority to require proof of vaccination for students (and already require that students be vaccinated against MMR [measles, mumps and rubella], meningitis, and other vaccine-preventable diseases), but the emergency use authorization (EUA) status of the Covid-19 vaccines raises a wrinkle,” Joanne Rosen, an associate lecturer in the Department of Health Policy and Management at Johns Hopkins University’s Bloomberg School of Public Health, said via email.

“I’m not aware of any legal precedent involving challenges to EUA-based vaccine mandates so colleges’ authority to require vaccination under these circumstances is a novel issue,” Rosen said. “However, I think colleges likely have a strong argument that they have the authority to require students to be vaccinated against COVID-19 (so long as they offer medical and religious exemptions).”

The ACE issue brief offers a similar view.

“Even though these vaccines are currently being offered only under the FDA’s Emergency Use Authorization, the legal right of institutions to require COVID-19 vaccination for students seems likely to be upheld as vaccine availability increases,” the brief states.

The brief further notes, “Most existing vaccine requirements have exemptions for objections for religious reasons or underlying medical conditions. It would be prudent for a college or university’s COVID-19 vaccine mandate to be drafted to align with existing state statutes and regulations, and legally required or prevailing exemptions in the locale.”

Also, while we’re arguing over this issue, everyone can argue over what is and isn’t proper documentation for vaccinations. Is a vaccine card enough? The cards can vary from vaccination site to site. Many states do not maintain vaccine registries or do not require medical providers to update them.