Colleges, States Spar Over COVID-19 Vaccine Mandates

• Over a dozen U.S. colleges will require students to get a COVID-19 vaccine for fall 2021.
• State leaders and lawsuits, however, claim schools can't mandate emergency-use vaccines.
• Some colleges are instead considering incentivizing students to get vaccinated.

Over a dozen U.S. colleges now say students coming to campus this fall must get a COVID-19 vaccine. First was Rutgers University in New Jersey, followed by Cornell University, Brown University, and the University of Notre Dame. The list of institutions continues to grow, even as some states move to ban entities from mandating the new vaccines.

College leaders say it will take a broadly vaccinated campus community for campus life to resume. While around 90% of college students at four-year universities are 25 or younger and at statistically lower risk of developing severe symptoms due to COVID-19, campuses are considered potential superspreaders for neighboring communities.

The Centers for Disease Control and Prevention leaves the question of mandating COVID-19 vaccination up to states, local governments, and employers. According to guidelines released by the Equal Employment Opportunity Commission in December, employers may require their employees to get vaccinated against COVID-19.

Can Colleges Legally Require COVID-19 Vaccination?

Lynn Pasquerella, president of the Association of American Colleges and Universities, claims the college leaders she's spoken to are leaning toward mandating COVID-19 vaccines for students as well as faculty and staff.

Most colleges already require proof of vaccination against measles, mumps, and rubella; meningitis; and hepatitis B. Public schools require the same vaccinations starting in preschool, with exceptions. But legal scholars remain divided on whether colleges can require students to be inoculated against COVID-19, since all vaccines are currently available on an emergency-use basis only.

The three COVID-19 vaccines available in the U.S. have not yet been approved by the Food and Drug Administration. The vaccines have also not been approved for use in children under 16. Lawsuits brought against vaccine requirements in California and New Mexico say that according to federal law, unapproved vaccines cannot be mandatory.

Legal scholars remain divided on whether colleges can require students to be inoculated against COVID-19, since all vaccines are currently available on an emergency-use basis only.

Like several other small and mid-sized colleges, Nova Southeastern University in Florida and St. Edward's University in Texas recently announced that on-campus students would need to be vaccinated against COVID-19 — but both states' laws undermine the requirement.

Texas Governor Greg Abbott issued an executive order that prohibits any governmental entity from compelling an individual to receive a COVID-19 vaccine issued for emergency use. Similarly, Florida Governor Ron DeSantis banned agencies and businesses from issuing or requiring proof of vaccination.

At least 12 other states have passed laws, or are considering legislation, that restrict or ban proof of COVID-19 vaccination. So far, however, nearly all of the colleges that have announced a vaccine mandate this fall are private, with greater freedom to write their own rules compared to state-funded colleges.

A spokesperson for the University of California, one of the largest public university systems in the country, said, "At this time, we do not anticipate making the COVID-19 vaccines mandatory."

Colleges' Plans for Vaccinated and Unvaccinated Students

In a brief on whether colleges should require or urge for COVID-19 vaccination, the American Council on Education (ACE) suggests mandatory vaccination is how campuses and surrounding communities can ultimately return to normal.

According to ACE, institutions may choose to not mandate the vaccines due to accessibility issues, risk of blowback, and the history of medical racism in vaccine experimentation, which has been linked to higher rates of vaccine hesitancy among Black and brown communities.

While most colleges say they'll allow exemptions for medical or religious reasons, they may treat such students differently. Students who choose to not receive a COVID-19 vaccine or to disclose their vaccination status would likely be subject to more rules than their peers, including quarantining and asymptomatic testing.

Building in exemptions for online students and students with medical or religious reasons for refusing vaccination reduces the chances of COVID-19 vaccine mandates being struck down.

Additionally, many colleges will not require online-only students to get vaccinated. Building in exemptions reduces the chances of vaccine mandates being struck down.

Rather than requiring the vaccine, some colleges are exploring how to incentivize students to get inoculated. At Dickinson State University in North Dakota, for example, fully vaccinated students will get a pin or a bracelet that exempts them from the school's mask mandate.

ACE suggests that colleges may incentivize students to get vaccinated against COVID-19 by offering tickets to sporting events; pushing unvaccinated students to enroll online instead of in person; and restricting access to study abroad programs, field trips, and campus transportation.

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