Duke University in North Carolina has announced that it will require students to have a COVID-19 vaccine when they return this fall. And the list of campuses with such policies is growing.
Rutgers University in New Jersey was the first, and since then more than a dozen residential colleges have followed. Notre Dame; two Ivy League schools, Brown and Cornell; and Northeastern University in Massachusetts are among those requiring the vaccine for fall. Cleveland State University will do so for all all students living on campus.
As vaccines become more widely available, it’s likely that many more colleges will add their own mandates. Thirty-seven states are now vaccinating people over 16 years old and by April 19, all states in the U.S. will join them.
“Vaccinations are an important tool for making the fall semester safe,” says Antonio Calcado, who leads the Rutgers COVID-19 task force. “We felt that just simply encouraging would not have the same effect as a requirement.”
Colleges have struggled this year to control outbreaks on campus. Residential campuses are social spaces, where viruses can (and did!) spread through dorms, off-campus housing and parties. And campuses aren’t insulated from their communities; there is research to suggest that spread of the coronavirus among students led to nearby deaths in nursing homes.
“This is not new”
Colleges have long required vaccinations for infectious diseases. In a survey of about 100 four-year institutions representing all 50 states and Washington, D.C., nearly all required at least one vaccine for enrollment. The MMR vaccine, which protects against measles, mumps and rubella, was required at 87.5% of campuses surveyed.
“This is not new,” explains Calcado. “We have a whole portal for uploading your vaccine history and all those types of things. So that’s already in place. And actually, this one just adds another vaccine to what’s in place today.”
When it comes to enforcement, colleges will most often use a registration hold, barring students from signing up for classes until they have met the requirement. But at some schools not having proof of vaccination can prevent you from living in campus housing. In some rare cases, students could face expulsion.
Colleges are not new to disease outbreaks either, and in many cases those outbreaks led to vaccination campaigns on campus. In 2015, after an outbreak of meningitis on the campus of the University of Oregon in which a freshman student died, the university set up mass vaccination sites. For that campaign, the school used adhesive bandages with the school’s “O” logo to advertise the vaccine to students.
Is it legal?
“Most universities have the power to require vaccines,” explains Dorit Reiss, a law professor at the UC Hastings College of the Law in San Francisco. “But it does depend on what the college can do generally on vaccines, and what they’ve done in the past.”
That’s because it’s not just federal law that colleges need to navigate — there are also state laws and the regulatory power certain colleges have to make requirements more generally. This can be easier for private colleges than for public ones, though some university systems, including the University of California, have power dictated by the state constitution.
Of course these types of mandates aren’t new, and their legality has been challenged and upheld for nearly a century. In 1925, a student sued the University of California saying he met all the requirements to attend the school except for having a required smallpox vaccination. The judge upheld the mandate. A 2015 law in California requiring vaccines among school children has also withstood legal challenges.
But current COVID-19 vaccines have been authorized by the FDA under an Emergency Use Authorization, which introduces a “new situation” for colleges, says Reiss. “We’ve never had the vaccine for the entire population authorized under EUA before.” So legal arguments have a little asterisk, she says, until vaccines are officially approved by the FDA, which could come as early as this summer.
“There almost certainly are going to be legal challenges because the anti-vaccine movement is already preparing for them,” says Reiss. “The main arguments will include the EUA question and the fact that these vaccines are early [in use].”
Most colleges offer some exemptions to their policies, primarily for medical or religious reasons, though Reiss says that “under previous jurisprudence, you don’t have to give a religious exemption. Because a vaccine mandate is not targeted at religion, it’s generally applicable.”
But she adds, the U.S. Supreme Court has already signaled that it’s going to be more protective of religious freedom than in the past. So, she says, this is an area of uncertainty going forward.
In December, The Equal Employment Opportunity Commission (“EEOC”) issued guidance that said no current law would prevent employers from requiring vaccines or needing proof of a vaccination from their employees.
According to an issue brief from the American Council on Education, which represents colleges, “the legal right of institutions to require COVID-19 vaccination for students seems likely to be upheld as vaccine availability increases.” The brief also includes alternatives to mandates, including offering students incentives to be vaccinated and making online learning options available for those who are not getting the shot.
One lingering question is what to do about international students. For students in countries without vaccine availability, says Calcado of Rutgers, that’s a bit easier. “We can get them vaccinated. We do it ourselves. That’s not a problem.” The main challenge, he adds, comes with students who have been vaccinated with something that hasn’t been approved in the U.S., like the AstraZeneca vaccine, which is widely used in the United Kingdom and is the subject of concerns about health risks.
Alternatives to a mandate
Even with large portions of the student body vaccinated, campuses are likely to keep many of the elements that have come to define COVID college: masking, frequent COVID-19 testing and social distancing. Even with a vaccination requirement for fall, Rutgers has said it will continue to test all students and faculty until public health officials advise otherwise.
The University of California San Diego plans to have campus student housing back at 100% capacity by fall quarter. Students without the vaccine will be required to continue weekly asymptomatic testing, currently the norm on campus. Students and faculty who are fully vaccinated in the fall will not be required to complete this testing, though wastewater testing for the virus will continue.
“I often refer to these as soft mandates,” explains Reiss, who studies vaccine requirements at colleges. “You can choose not to vaccinate, but there are going to be some consequences. That incentivizes vaccination.”
Getting current students vaccinated
As vaccine eligibility has opened up to include college-age adults, campuses have become vaccination sites. In an interview on WBEZ’s Reset, Robert Jones, chancellor at the University of Illinois at Urbana-Champaign, says there is an “ongoing discussion” about vaccine requirements.
In the meantime, he said, the university is focused on getting the vaccine to current students. “The important thing for us, at this university and across the whole University of Illinois system, is to make sure that we get all of our students vaccinated before they depart at the end of this semester.”
Other campuses are restricted by current eligibility rules. Out-of-state students in Vermont, which represents a majority of enrollment at the University of Vermont, are not able to be vaccinated until April 30. New Hampshire will expand eligibility to out-of-state residents, including college students, starting April 19th.
In addition to becoming a distribution site for the vaccine, Rutgers University will also begin a mass communication campaign to educate the student body and the surrounding community, about the importance of getting a COVID-19 vaccine.
“We’re having students do videos,” says Calcado. Administrators are working with the university’s student government to design messages that resonate. “We need to take out the noise, and concentrate on what the science says. The message is: What are the facts? What do we know?”
Calcado says it’s not just the current or prospective students he has in mind for this. “When our students go back to their communities, to their families,” he says, “you know they’re armed with good information.”