With the current increase of hospitalizations, the influx of the Delta variant in the United States and the low level of vaccinations in certain regions of the United States, universities and other higher education institutions are faced with a dilemma: Can these institutions make COVID-19 vaccinations mandatory for students?
It is an issue with complicated layers, and the evolving nature of COVID-19 doesn’t make it easy to arrive at a single consensus. Virginia Tech announced that it doesn’t believe it is legally authorized to require COVID-19 vaccinations for its students since the FDA has approved vaccines only for emergency use.
While Virginia Tech isn’t requiring vaccinations, according to the Chronicle of Higher Education, as of August 2021, at least 645 colleges are requiring students to receive the COVID-19 vaccination as a prerequisite to attend classes on campus. Other higher institutions have followed suit. University of Michigan, Michigan State University and Wayne State University all recently announced vaccine mandates.
Not surprisingly, vaccine mandates by universities have been challenged in the courts. And in a recent ruling, the U.S. Court of Appeals for the Seventh Circuit, in Klaassen v. Trustees of Indiana Univ., upheld Indiana University’s right to mandate vaccines for students returning to campus. The ruling denied a request for an injunction pending appeal of a federal district court’s ruling in favor of Indiana University.
The Seventh Circuit cited U.S. Supreme Court case Jacobsen v. Massachusetts as a precedent for its ruling. In Jacobsen, the Court held that a state may require all members of the public to be vaccinated for smallpox. Based on this ruling, the Seventh Circuit stated that there can’t be a constitutional issue with institutions requiring students to receive the COVID-19 vaccine.
The Jacobsen case didn’t allow for an exemption for adults, which is different from Indiana University’s policy on COVID-19 vaccines. The university allows exceptions for those students who declare vaccinations incompatible for religious beliefs and for those individuals for whom vaccines are medically contraindicated. Those exempt individuals are required to wear a mask and get tested. The Seventh Circuit did not view this as a constitutional problem.
The last distinction the Seventh Circuit made is that Indiana does not require every person in the state to be vaccinated, as was the case in Jacobsen. Those students who don’t want to comply with Indiana University’s vaccination requirement can simply attend an institution that doesn’t have this requirement. The court stated, “Each university may decide what is necessary to keep other students safe in a congregate setting. . . Vaccination protects not only the vaccinated persons but also those who come in contact with them, and at the university close contact is inevitable.”
In addition, since universities can already require surrendering property (i.e., payment of tuition) or requiring students to read or write about certain things (i.e., assignments by a professor), it was “hard to see a greater problem with medical conditions that help all students remain safe while learning.” The Seventh Circuit explained that it would be too difficult to learn if other students felt the spread of disease was imminent.
Indiana University can’t require students, faculty or staff to provide documentation that they received the vaccine since the attorney general of Indiana stated it would violate a new state law banning immunization passports. Instead, individuals would sign an attestation statement certifying they received the vaccine. Lying about vaccine status on this form may result in a punishment.
This case isn’t the final word on the issue. Plaintiff’s lawyer has indicated he plans to appeal the ruling to the Supreme Court. The landscape and terrain on requiring vaccines at higher institutions is subject to the evolving nature of COVID-19 and the responsibility of universities to offer the best learning environment and most importantly, a safe place for students.
If you have any questions about this recent ruling, or vaccine policy issues in higher education more generally, please contact Ryan Kauffman.