This post originally appeared on the Harvard Law Review Blog.
By I. Glenn Cohen and Dorit Rubinstein Reiss
In the last year, colleges and universities across the U.S. struggled with how to operate during the COVID-19 pandemic. The most recent data, from January 2021, shows a mix of online and in-person modes of instruction.
At the same time, a study of the experience in early fall 2020 found an association between colleges and universities with in-person instruction and increased infection incidence in the counties within which the schools were located. With vaccine authorization in the U.S. and the promise of potential availability for student populations in late spring and summer 2021 (in most states’ allocation plans these students are among the last groups in prioritization), there is increasing interest by higher education institutions in moving more of their fall 2021 educational instruction and non-instructional activities to in-person modes. 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. At the same time, university leaders are likely reasonably concerned about the legality of mandating COVID-19 vaccines. Not all students, faculty or staff may appreciate such a requirement, and anti-vaccine groups are more than ready to assist in litigation — as, for example, they did when the University of California required influenza vaccines for on-campus attendance (a preliminary injunction in that case was denied). In this essay, we discuss whether universities can legally require vaccination as a condition of attendance and with what accommodations.
Unlike the employment context, where the Equal Employment Opportunity Commission (EEOC) has spoken directly, there is no federal guidance on colleges and universities mandating COVID-19 vaccination. Nevertheless, there is a well-established practice of universities mandating that students receive specified vaccines for other diseases as a condition of attendance, and exemptions are often hard to obtain. While case law considering challenges to such university mandates is admittedly sparse, in a recent case, 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. Because of the greater public health risk, public universities are on even surer footing with a COVID-19 vaccination requirement than an influenza vaccination requirement. The University of California is a public university, and thus a state actor for constitutional law purposes, while private colleges and universities will typically not face the same federal constitutional scrutiny with respect to any such mandate.
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. Although we are unaware of any cases on university vaccine mandates under these statutes, they do require accommodations for students with disabilities. In considering the accommodation requirement, it seems plausible that courts would 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 that the college or university provide an accommodation. This does not necessarily require a college or university to provide full access to campus, though: only a reasonable accommodation that allows students access to education. Remote learning, dedicated spaces for these students, or extra PPE might constitute potential accommodations under this law, although their adequacy would ultimately be judged by a court if challenged.
Beyond disability accommodation, some students may also request religious exemptions from a COVID-19 vaccination mandate. As a matter of federal law, while Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of, among other things, religion, there is no comparable requirement for colleges and universities as to their student bodies. Therefore, private (as opposed to public) colleges and universities need not, as a matter of federal law, grant religious exemptions. Indeed, many private colleges and universities with pre-COVID vaccine mandates do not grant religious exemptions to students.
The matter is a bit less certain for public colleges and universities. While there are very few cases on point at the university level, extensive jurisprudence at the K-12 level makes it clear that a vaccine mandate does not have to include a religious exemption. As such, a public university may argue it does not have to give one — and no case has, as of yet, invalidated university vaccine requirements without a religious exemption. However, there are several reasons to doubt this argument would succeed: First, the Supreme Court has recently, in several cases, provided stronger protection for religious freedom by striking down measures imposing public health requirements on religious establishments. This trend may implicate vaccine mandates as well, although it is not clear whether the Court would at any point require a religious exemption from a vaccine mandate. Second, some states have Religious Freedom Restoration Acts (RFRAs) that may be interpreted to require public colleges and universities to provide religious exemptions, though no case has required religious exemptions to vaccines mandates under these laws yet.
The third reason public universities may not succeed in arguing against a religious exemption is that the existing law in this area as to K-12 schools may not apply to colleges and universities. On the one hand, the interest of those seeking exemptions in the latter case seems stronger; it is not parental autonomy which is the alleged interest — an interest that is already subject to many limitations — but the adult student’s own bodily autonomy. On the other hand, the consequences for students whose parents refuse vaccinations are worse in the K-12 educational context because that education is viewed more as a fundamental right, especially in states that protect the right to education in their state constitution. University attendance may be viewed more as a privilege and less as a right by courts, who may afford more deference to a university’s decision to require vaccination to protect students, faculty, and staff. While we think colleges and universities will likely prevail if they are challenged for failing to provide bona fide religious exemptions, some schools may decide it is preferable to offer accommodations akin to disability or may see the presence of a RFRA as requiring it.
For COVID-19 vaccines, an additional wrinkle is the fact that the vaccines are (thus far) not fully approved but instead authorized under an Emergency Use Authorization (EUA). While some vaccines may shortly transition to full approval, they may not be the ones available for students in a particular state. While some may agree with our analysis as to approved vaccines, does the same hold true for those provided under EUAs?
The Act enabling the granting of EUAs requires notifying recipients “of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.” This provision, though, does not appear to limit what conditions can be imposed on those who refuse a vaccine under an EUA. While the federal government has not yet addressed educational institutions, in its guidance to employers, the Equal Employment Opportunity Commission has suggested it is possible for employers to mandate vaccination even if the vaccine is only under an EUA; moreover, many of the COVID-19 tests that colleges and universities have mandated in recent months have themselves been authorized under an EUA and not a full approval. For these reasons, we believe that our analysis — suggesting wide latitude for colleges and universities to mandate COVID-19 vaccination — applies whether the vaccine is approved or merely under an EUA.
While we have concluded that, under the existing federal statutes and case law, colleges and universities have broad discretion to require vaccination as a condition of a full return to campus, there are admittedly areas where more clarity would be desirable. The federal government should provide guidance to colleges and universities affirming their general right to impose mandates and clarifying what counts as reasonable accommodations for students seeking disability accommodations when a vaccine is medically contraindicated. States or colleges or universities that have provided religious or non-religious exemptions from prior vaccine mandates should clarify whether those state law exemptions also apply to the COVID-19 vaccine. While we ultimately do not think it is determinative as to the lawfulness of a vaccine mandate, the federal government should clarify that the EUA versus fully approved distinction does not matter for mandating vaccination. Finally — again, while not determinative of the lawfulness of the mandate — it would be wise for sponsors to continue to pursue full approval for these vaccines as quickly as possible (and not stop at EUA status) because it provides further assurance to students and the general population of their safety and efficacy, a key element to driving uptake.
All that we have said establishes that colleges and universities may lawfully impose a vaccination mandate on students as a condition of returning to campus. In deciding whether to exercise that legal authority, these institutions are likely to be guided by complex questions of student sentiment, public relations, and whether they can expect high vaccination rates without mandates. We expect a patchwork of approaches in the fall.
I. Glenn Cohen, JD is a Deputy Dean and the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School, and current Faculty Director of the Petrie-Flom Center.
Dorit R. Reiss, LLB, PhD is a Professor of Law at the University of California Hastings College of the Law, San Francisco, CA.