JEFF D'ALESSIO: Mandatory vaccinations for all come fall? Not on local campuses
With colleges and universities from coast to coast announcing plans to require all students, faculty and staff to get vaccinated before next school year, The News-Gazette asked a panel of experts:
Speaking generally, not about your own employer, what’s the single-biggest obstacle you could foresee mucking up plans for any school that goes this route (assuming they’re in their legal right to do so)?
UI Law Dean, Iwan Foundation Professor of Law
“Your question brackets the issue of whether universities and colleges have the legal power to require community members to be vaccinated, but I first want to point out that this legal issue may be thorny, particularly for public institutions that are bound by state constitutions as well as federal law, and especially since the COVID vaccines available right now have been given only emergency-use approval by federal authorities.
“Moreover, even if a university ultimately were to win a legal battle over its authority to require vaccines, there are always financial and other considerations that arise when a proposed policy is likely to be challenged and litigated.
“Beyond the legal questions, there are administrative and logistical ones.
“To whom are exceptions given? Certainly people for whom it would be medically dangerous to get vaccinated ought to be exempt.
“But then do people with religious, rather than medical, objections also warrant exemption? (And a recent U.S. Supreme Court case might be read to require religious exemptions when any other kinds of exemptions are conferred, further complicating the legal matters adverted to above).
"And how do you avoid making people who are entitled to exemptions feel improperly singled out or stigmatized when, for example, admittance into the football arena or other public places within a university requires some kind of proof of vaccination?
“Finally, and perhaps most importantly, there are philosophical and pragmatic reasons why some institutions might prefer an encouragement rather than a mandate approach. Provided that a state or university makes the vaccine widely available, and provided there is evidence that a very high percentage of the university’s students and employees are likely to get the vaccine, the overall group protection for the university community may not be meaningfully diminished if a small number of people, because of fear of the vaccine or for moral reasons, decline to be vaccinated.
“If the community is going to be similarly protected either way — and there are always going to be some unvaccinated members of the public who interact with students, faculty and staff both on and off campus, so 100 percent vaccination in a university region is never going to be realized — I could see why an institution might not want to force people who don’t want to take the vaccine to have to choose between doing something that makes them very uncomfortable or scared, or leaving the university community altogether.
“Just as with health-care coverage more generally, mandates here can be controversial, and there is a plausible argument that subsidies and public education efforts — carrots, if you will — can get you to the same public health place as a hard stick — a mandate backed up with exclusion — without the risk and costs of litigation, acrimony or alienation of a group of people you’d like to keep part of your community."
ROBIN FRETWELL WILSON
Director, UI Institute of Government & Public Affairs; Co-Director, Epstein Health Law & Policy Program
“An overwhelming majority of states exempt school-aged children from vaccination requirements for religious or moral objections of their parents. Commentators say: ‘In general, college vaccination policies must comply with the legal exemptions to vaccination outlined in each state’s public health laws.’ One in five students say that universities don’t have a right to vaccinate students.
“These exemptions have been tied to outbreaks.
“Post-COVID-19, states are walking back those protections. Washington, New York, Maine and the District of Columbia are leading the way.
“Ironically, universities are replicating the states’ robust accommodations structure. Cornell President Martha Pollack and Provost Michael Kotlikoff indicated in a statement, ‘(m)edical and religious exemptions will be accommodated, but the expectation will be that our campuses and classrooms will overwhelmingly consist of vaccinated individuals, greatly reducing the risk of infection for all.’
“Rutgers University issued a similar statement, affirming that ‘(s)tudents may request an exemption from vaccination for medical or religious reasons. Students enrolled in fully remote online degree programs and individuals participating in online-only continuing education programs will not be required to be vaccinated.’
“Exemptions follow the mere filing of a form. At St. Edward’s University, a private university in Austin, Texas, with approximately 4,300 students, ‘exemption pathways supporting student and employee choices related to religious beliefs, underlying medical conditions, and concerns associated with Emergency Use Authorization (are being provided).’ To receive an exemption, a signed affidavit must be presented.
“Public universities may feel especially bound to give religious accommodations. Free exercise claims are strongest at public universities which are identified with the state.
“It is not clear that religious accommodations to vaccine requirements would be demanded by the First Amendment. Employment Division v. Smith upholds rules of neutral applicability being applied even to burdens on religious practice, although state religious freedom restoration acts may impose more demanding requirements of the state.
“One outstanding question is whether exemptions are given only for secular reasons — medical and philosophical but not religious. One can imagine a refusal to accommodate religious practice being seen as ‘discrimination’ against religion, much as the U.S. Supreme Court has analyzed the different restrictions placed on worship versus economic activity.”
UI Professor, School of Labor & Employment Relations, College of Law
“The biggest obstacle that universities face is the possibility that many students would refuse to comply.
“The health-care industry is grappling with 20 percent or more of nurses who won’t vaccinate for COVID-19. Employers can’t discipline or replace so many nurses, so they have to adapt to this reality for now.
“If 20 percent of students refused to vaccinate, universities would be in a similar position: They can’t operate without their tuition, but like hospitals and clinics, they might place additional restrictions on non-compliant people — perhaps online-only classes, or more frequent testing.
“Whatever the options are, this would add more cost and complexity to an already challenging situation. On the other hand, not requiring vaccination may pose even greater costs and contingency planning.”
Clinical Professor of Law, Northwestern
“There are a few challenges that I think universities will have to bear in mind if they impose a vaccine mandate on university communities. The two most significant, to my mind:
“First, equity. Not all members of the community have equal access to the vaccine. If a university mandates vaccination for its community, it has an ethical and moral obligation to make vaccinations available for its community.
“Second, trust. As we know, not everyone believes the vaccine is safe and effective. Individual community members or their families may refuse to comply with the mandate. If that is the case, they will presumably be barred from campus if they tell the truth about their vaccine status.
“They may therefore be incentivized to lie about their vaccine status, endangering the public health. In order to address this, a health education-focused series of university-led community conversations to build trust and understanding about how getting vaccinated against COVID-19 protects our health, our family’s health and the health of our communities is essential.”