Colleges Face a Question: Is It Legal to Require the COVID Vaccine?

After over a year of remote learning and endless Zoom classes, colleges are eager to welcome students back this coming fall. Most have announced a return to campus, on the conditions that COVID cases don’t surge, and vaccines remain available. And a growing number of schools (about 40, so far) have a major asterisk attached to coming back to campus: showing proof of your COVID-19 vaccine. 

Rutgers University in New Jersey was the first educational institution to announce mandatory vaccines for students in late March, with religious and medical exemptions. Several schools quickly followed: Duke University will require proof of vaccination in order to register for fall classes; Columbia requires the same for anyone who plans to be on campus; and St. Edwards University, a private school in Austin, became the first school in Texas to announce any kind of COVID vaccine requirement on March 29. 

Requiring COVID vaccines, the same way that bacterial meningitis vaccines are mandated, feels like the most obvious solution for ensuring a safe return to campus in fall 2021. “There is no single mitigation practice outside of vaccinations that has such a high impact on reducing transmission within a community, as well as lowering the risk of severe infection or hospitalizations for those that do become infected,” Justin Sloan, vice president of Institutional Effectiveness & Planning at St. Edwards, told VICE. Public health experts say the same; while vaccines aren’t the only necessary mitigation tactic for stopping the spread of COVID, they’re an extremely effective, safe, and important one. 

But for now, mandatory COVID-19 vaccines are in a legal gray area, because it’s unclear whether a vaccine like this one can be required by schools, and even more unclear what happens if students refuse. In moving to require vaccines, schools are going up against state governments that are passing legislation and issuing orders that make it impossible to mandate vaccines, leaving faculty and students concerned for their safety as campuses fully reopen. 

On April 5, about a week after St. Edwards’s announcement, Governor Greg Abbott released an executive order banning any institution that “receives public funds through any means” from mandating the COVID-19 vaccine. Since St. Edwards receives funds in the form of student aid, the school highlighted an existing exception in its policy: Students who decline to submit vaccine proof won’t be barred from campus or classes, but will be subject to additional asymptomatic testing in line with CDC recommendations, as Justin Sloan, vice president of Institutional Effectiveness & Planning at St. Edwards, told VICE. Otherwise, vaccinated and unvaccinated students will be treated exactly the same. 

“Individuals that provide documentation that they're unvaccinated—or are not providing their documentation—are going to be treated the same way,” Sloan said. 

What happened at St. Edwards is likely to play out at colleges and universities across the country all summer long, as schools find themselves stuck between precedent, Republican governors who prioritize personal freedom over public health, and the need to protect their students and staff from the ongoing pandemic. In Florida, for example, Governor Ron DeSantis issued a similar order to Abbott’s the day after Nova Southeastern University announced its own vaccine requirement. The school is still reviewing the Governor’s order, and has yet to amend its policy. 

On average, it seems students want to be back on campus, especially campuses where vaccines are required and where they feel safe. “My school just announced that COVID vaccines will be mandatory for anyone going in person on campus next semester and I cried tears of joy and relief,” one college student recently tweeted. 

As students previously told VICE, Zoom school feels like a waste of time and money. Sloan said surveys they’ve run throughout the year at St. Edwards show that students overwhelmingly want to be back on campus. At the same time, administrators want to avoid the campus outbreaks and outbreak-related dramas of the past school year. (At the University of South Carolina, where cases topped 1,400, the school, at one point, ran out of space in which to quarantine and isolate sick and exposed students.)

Mandatory vaccines seem like the obvious solution. At schools like Cornell, the vaccine requirement is based on increased availability and open appointments for anyone over the age of 16; in other words, there’s no reason why an incoming student shouldn’t be able to get vaccinated by the time classes start in late August. Other schools, like Dickinson State University in North Dakota, are operating in an in-between space by not necessarily requiring vaccines, but encouraging students to submit proof of vaccination by saying it will alleviate the requirement to wear a mask all the time. (Though public health experts recommend continuing to wear a mask, post-vaccine, because it remains unclear whether vaccinated people can still spread the virus.) 

But schools in other states, like Texas and Florida, are stuck wondering whether it’s legal to mandate a vaccine that only has emergency use authorization, or EUA (as opposed to other required vaccines, like the one for meningitis, which has standard, full FDA approval). The Texas executive order, for instance, specifies that the COVID-19 vaccine cannot be required in its current EUA status.

“I've seen statements by people that they believe—in all circumstances—that EUA biologics and products cannot be mandated, but I think that statement is too broad,” Jeffrey Nolan, an employment and higher education lawyer at Holland & Knight in Boston, told VICE. 

As Nolan explained, it would be one thing if colleges required students to get vaccinated on campus—that would likely violate FDA regulations. But schools should be legally able to require proof of vaccination to register for class or live on campus, the same way they require other medical records. Currently, state executive orders like in Texas and Florida are the strongest opponent against such requirements. Nolan said the most likely way this will all play out in states with such orders is that the state will threaten to withhold funding from schools who go ahead with a vaccine mandate, just as the federal government does when schools fail to comply with Title IX. 

The likely scenario is that more states will continue rolling out executive orders and bills that make it impossible to mandate something that only has FDA emergency use authorization, making it difficult for schools to reopen without outbreak concerns, and creating a patchwork of safety across the country’s school system. As with everything else, the slide back into normalcy for colleges and universities is already shaping up to be rocky and complicated. 

Follow Hannah Smothers on Twitter.