Universities' Covid Vaccine Requirements: Student Rights And Freedoms

The COVID-19 pandemic has forced colleges and universities to make difficult decisions about how to operate safely. In the US, some universities have mandated that students receive a COVID-19 vaccine before returning to campus, prompting litigation from anti-vaccine groups. While there is no federal guidance on this issue, universities have generally been permitted to require that students receive specified vaccines as a condition of attendance. This includes COVID-19 vaccines, which a federal judge has ruled universities can require students to take in the interest of public health.

However, this mandate is not without its critics. Some believe that vaccine mandates are unreasonable and discriminatory, and there are concerns about the safety and efficacy of the vaccines. As of July 2024, twenty US colleges continue to require COVID-19 vaccines for students. This is down from approximately 100 colleges a year prior.

Can universities legally require students to get the COVID-19 vaccine?

The short answer

Colleges and universities can require students to get the COVID-19 vaccine before returning to campus. However, this is a complex issue and there are no federal laws that explicitly address whether private or public colleges and universities can mandate COVID-19 vaccination for their students.

The long answer

The legal basis for universities to require COVID-19 vaccination

Universities have often been loci for vaccination campaigns and many have required influenza vaccines during the COVID-19 pandemic. There is also a well-established practice of universities mandating that students receive specified vaccines for other diseases as a condition of attendance.

Case law

While case law is sparse, a California trial court upheld the constitutionality of an influenza vaccine mandate by the University of California, a public university. The court drew an analogy to the permissibility of such mandates in K-12 public school systems, requirements which courts have upheld for decades, referencing the Supreme Court’s jurisprudence in *Jacobson v. Massachusetts* and *Zucht v. King*.

Universities' broad discretion to require vaccination

Both public and private colleges and universities are subject to the requirements of the Americans with Disabilities Act (ADA) and/or its sister statute, the Rehabilitation Act of 1973. While there are no cases on university vaccine mandates under these statutes, they do require accommodations for students with disabilities. Courts would likely draw an analogy to the ways these acts operate in the employment context and find that a medical contraindication to a COVID-19 vaccine can qualify as a disability necessitating accommodation.

Religious exemptions

Beyond disability accommodation, some students may also request religious exemptions. As a matter of federal law, there is no requirement for colleges and universities to grant religious exemptions regarding their student bodies. Therefore, private colleges and universities need not grant religious exemptions. Indeed, many private colleges and universities with pre-COVID vaccine mandates do not grant religious exemptions to students.

The matter is less certain for public colleges and universities. While there is extensive jurisprudence at the K-12 level that clarifies that a vaccine mandate does not have to include a religious exemption, this has not yet been tested at the university level.

The impact of EUAs

An additional complexity is that, thus far, COVID-19 vaccines are not fully approved but are authorised under an Emergency Use Authorisation (EUA). The Act enabling the granting of EUAs requires notifying recipients that they can "refuse administration of the product". However, this provision does not appear to limit what conditions can be imposed on those who refuse a vaccine under an EUA. In its guidance to employers, the Equal Employment Opportunity Commission has suggested it is possible to mandate vaccination even if the vaccine is only under an EUA.

The current situation

As of July 2024, 20 United States colleges continue to require their students to receive the COVID-19 vaccine, according to the watchdog organisation No College Mandates. This is down from approximately 100 colleges in August 2023.

What are the safety concerns regarding the COVID-19 vaccine?

The COVID-19 vaccines have undergone the most intensive safety analysis in US history. The CDC and FDA continue to monitor the safety of the vaccines even after FDA approval.

The CDC has identified anaphylaxis, myocarditis, pericarditis, and Guillain-Barré syndrome (GBS) as serious types of adverse events following COVID-19 vaccination. Anaphylaxis is a rare but serious allergic reaction that can be life-threatening and requires immediate treatment. Myocarditis and pericarditis are inflammations of the heart muscle and the outer lining of the heart, respectively, and usually resolve with medicine and rest. GBS is a rare disorder where the body's immune system attacks the nerves, causing muscle weakness and sometimes paralysis.

Thrombosis with Thrombocytopenia Syndrome (TTS) is another rare condition that has been observed in very few cases after receiving the J&J/Janssen COVID-19 vaccine. TTS causes blood clots and low platelet counts.

Although rare, severe allergic reactions following vaccination can be life-threatening and include symptoms such as difficulty breathing, low blood pressure, swelling of the lips, tongue, or throat, and a widespread itchy skin rash.

It is important to note that the benefits of the COVID-19 vaccines greatly outweigh the risks, and they are considered safe and effective in preventing severe disease, hospitalization, and death.

What are the pros and cons of universities mandating the COVID-19 vaccine?

Pros

• Universities have a well-established practice of mandating that students receive specified vaccines for other diseases as a condition of attendance.
• Vaccinating students is a key step to safely reopening campuses, in whole or in part, in a way that is safe for students, faculty, staff, and local communities.
• COVID-19 vaccines stimulate the body's immune system against infectious pathogens and are, therefore, one of the greatest medical accomplishments and a cornerstone of public health.
• COVID-19 vaccines are likely the most effective approach to sustainably controlling the COVID-19 pandemic.
• The Equal Employment Opportunity Commission (EEOC) has repeatedly taken the position that mandating COVID-19 vaccinations is legal.
• Vaccines can help build up herd protection against COVID-19, which could allow lockdowns, travel restrictions, and social distancing to be relaxed globally.

Cons

• There is no federal guidance on colleges and universities mandating COVID-19 vaccination.
• There is sparse case law considering challenges to university vaccine mandates.
• The COVID-19 vaccines are not fully approved but instead authorized under an Emergency Use Authorization (EUA).
• There is a foreseeable risk of the public moving away from social restrictions.
• There is no concrete proof/evidence regarding the effectiveness of the vaccine in terms of increasing immunity over a period of time.

What are the alternatives to universities mandating the COVID-19 vaccine?

There are several alternatives to universities mandating the COVID-19 vaccine. Firstly, universities can encourage students and staff to get vaccinated as soon as possible, without making it mandatory. This approach is being taken by the University of South Florida, which does not currently require students, faculty, or staff to get the COVID-19 vaccine.

Another alternative is for universities to require vaccination only for students living in residence, as Western University has done. This approach is supported by a Montreal bioethicist, who argues that mandating vaccines for all students is ethically problematic and a form of discrimination. She suggests that universities should instead rely on a combination of mask mandates, physical distancing, rapid testing, and support for international students who cannot get vaccinated in their home countries.

A third option is for universities to mandate vaccination only for students who want to participate in on-campus activities, as the University of Michigan has done.

Finally, universities can simply recommend that students get vaccinated, without any requirements or mandates. This approach is being taken by Ohio State University, Illinois State University, and Franklin College.

What are the legal challenges to universities mandating the COVID-19 vaccine?

University leaders are likely concerned about the legality of mandating COVID-19 vaccines. While there is no federal guidance on colleges and universities mandating COVID-19 vaccination, there is a well-established practice of universities mandating that students receive specified vaccines for other diseases as a condition of attendance.

Religious Exemptions

Many students may request religious exemptions from a COVID-19 vaccination mandate. While there is no federal requirement for colleges and universities to grant religious exemptions, some state laws may be interpreted as requiring public colleges and universities to provide religious exemptions.

Disability Accommodations

Both public and private colleges and universities are subject to the requirements of the Americans with Disabilities Act (ADA) and/or its sister statute, the Rehabilitation Act of 1973. Courts would likely find that a medical contraindication to a COVID-19 vaccine qualifies as a disability necessitating that the college or university provide an accommodation. However, this does not necessarily require a college or university to provide full access to its campus, and reasonable accommodations may include remote learning, dedicated spaces for these students, or extra PPE.

Political Challenges

In many Republican-led states, governments have banned vaccine mandates, or school leaders face political pressure to limit their anti-virus actions. Opponents say the requirements tread on personal freedoms. Some universities have sidestepped this pushback by offering enticements for students to get vaccinated, such as prize drawings for free tuition and computers.

Emergency Use Authorization

Another legal challenge is the fact that the COVID-19 vaccines are (thus far) not fully approved but instead authorized under an Emergency Use Authorization (EUA). While the federal government has not yet addressed educational institutions, the Equal Employment Opportunity Commission has suggested it is possible for employers to mandate vaccination even if the vaccine is only under an EUA.

Frequently asked questions