COVID-19 Vaccine Mandates in Higher Education

The year is 1911.

A safe, proven and effective smallpox vaccine is widely available. Still, smallpox will go on to kill roughly 500 million people over the course of the 20th Century. Children will bear the brunt of the disease. Though smallpox has an overall fatality rate of 30%, the rate is much higher among children. 80% of all small children who contract the disease will die.

Fortunately, a century later, this is no longer true. That’s because smallpox was declared eradicated more than 40 years ago. The 1979 announcement marked a resounding victory in the battle between infectious disease and inoculation. So what’s the relevance to our present-day situation?

Simply stated:

• Public schools in America have always mandated vaccines; and
• Legal precedent has always reinforced their right to do so.

So now, more than a century later, with the question of vaccine mandates once again emerging in public school districts and on college campuses, let’s explore the issue with a little more depth...

Learn more about this history of the smallpox vaccine and the resulting public debate in our look at the Vaccine Controversy.

The COVID Connection

With smallpox, the road from first inoculation to total eradication was hundreds of years in the making. With COVID-19, our journey toward immunization has only just begun, but the pitch of the debate, and the subject matter, echo those from more than a century ago. The surging Delta variant strain of COVID-19 demonstrates that we are still frustratingly far from ending this pandemic. And with public health officials doing their very best to shout over misinformation and anti-vaccination sentiment, colleges and universities all over the country are joining the effort with vaccine mandates.

On August 23rd, the FDA announced its full approval of the Pfizer-BioNTech COVID vaccine for all Americans 16 and older. With this official stamp of approval, institutions that have been otherwise hesitant to establish a mandate are now hammering out new vaccination requirements. This is changing the calculus for universities.

For a number of schools, this approval has changed very little. Some schools mandated vaccinations for faculty and students almost as soon as vaccine rollouts were underway. But for others, this removes a major hurdle to compulsory vaccination.

The result is an uptick in campus vaccination requirements that only promises to grow in the coming year. Indeed, the Chronicle of Higher Education reports that more than 150 colleges and universities added their names to the list of schools with vaccination policies in just the two weeks following the FDA announcement. That brings the total number of schools with such policies to well over 1000 at the time of writing. That number will only grow, especially as other vaccines such as those produced by Moderna and Johnson & Johnson gain full FDA approval.

So if you’re a student planning to embark on a campus education in the coming years, your prep list may include a dry erase board, a laptop, a hot plate, and two shots in the arm.

But what are the legal implications of the vaccine mandates rolling out at universities across the nation? And what must you do to be in compliance?

If you’re interested in exploring other impacts of the COVID-19 pandemic on higher education, check out:

Otherwise, read on to find out what’s happening on the vaccine mandate front in higher education.

Which schools have mandatory vaccine policies in 2021?

The Chronicle of Higher Education provides a regularly updated index and map of all the colleges and universities in the United States that have adopted some type of vaccination policy, from those who strongly encourage vaccination to those who have mandated vaccines for some portion of students and staff to those which have instituted total vaccine mandates for anybody affiliated with the school. Though the index and map are behind a paywall, these are valuable resources for those who wish to understand the vaccine mandate landscape.

A look at the index itself demonstrates that the vast majority of elite universities in the U.S. have instituted total vaccine mandates for all students and faculty. This includes Ivy League schools like Harvard, Princeton, and Yale, leading scientific institutions like MIT and Caltech, and prestigious southern universities like Duke, Emory, and Davidson.

But beyond the notables who appear on this list, the Chronicle offers evidence of a few trends as well. The map which identifies the spectrum of schools with vaccine mandates distinguishes both between public and private universities, and indicates which candidate each state voted in the 2020 presidential election.

On the latter point, it should be noted that colleges and universities in states that voted for Democratic candidate Joe Biden are more likely to have instituted vaccine mandates than are schools in states that voted for Republican incumbent candidate Donald Trump. This suggests that political orientation in the surrounding state may play a part in whether or not your school takes up a vaccination mandate.

In fact, as of now, four states—Arizona, Florida, Oklahoma and Texas—have all passed laws that prohibit public institutions from enacting mask mandates. Trump won overwhelming victories in three of these states while Biden emerged victorious with a close margin in Arizona. Still, Arizona is controlled today by a Republican governor and state legislature. Such is to say that in some Republican-controlled states, it is already the case that vaccine mandates cannot be instituted by colleges and universities. It is not out of the question that the uptick in mandates on individual campuses will prompt similar policy responses in other Republican-led states.

One further note from the Chronicle map—evidence suggests that public colleges and universities are more likely than private universities to institute vaccine mandates. With the Biden White House bringing greater pressure to bear on public institutions in the fight against vaccine skepticism, that trend may continue.

The Vaccine Mandate Backlash

Just as in the early 20th Century, the push for vaccine mandates today is facing blowback from select groups. While the anti-vaccination movement has existed for as long as vaccines have existed—both on grounds of medical skepticism and religious abstention—another strain of this movement is driven largely by the principle of personal liberty. Early pamphleting from the anti-vaccination movement defers to John Stuart Mill on the absolute primacy of individual rights.

It is thus that a movement of young libertarians finds itself on the front lines today, not against vaccines it notes, but against vaccine mandates. Begun by the Virginia Tech Young Americans for Liberty (YAL) in response to the school’s June 2021 announcement of a vaccine mandate, the movement has spread to YAL chapters on 23 public campuses including Rutgers and University of Colorado at Boulder. Libertarian student groups have pledged to resist “government interference in private medical decisions.”

For its part, Virginia Tech has already disenrolled more than 100 students for non-compliance with its vaccination policy. Ben Walls, a multimedia journalism student and co-president of the Virginia Tech YAL Chapter, points out that he and his organization take COVID seriously, and do not dispute the value of vaccinations. However, Walls–who is unvaccinated but remains on campus with a “religious exemption”–insists that neither the danger of the virus nor the effectiveness of the vaccine should “mean that Virginia Tech, as a state agency, really should have to do anything in order to ‘keep us safe.’”

Actually, legal precedent states exactly the opposite

In fact, while there are those who have responded to these and other mandates with outrage, the truth is that vaccinations have always been mandatory on most college campuses. Long before the organized and widespread anti-vaccination movement gained a foothold in American political discourse, schools began mandating vaccines as a way to protect the public health in communal settings such as college campuses.

Legal precedent reinforces the right of colleges to impose such mandates on their student bodies. In fact, this precedent was established more than a century ago and has been upheld repeatedly in the time since. According to the 1905 decision in Jacobson v. Massachusetts, state governments have the right to enforce laws that require citizens to be immunized in order to be allowed in certain public or shared spaces.

Returning once again to the epidemic that started it all, the original case centered around a smallpox outbreak in the city of Cambridge. In order to stifle the spread of the deadly virus, Cambridge imposed a vaccine mandate and introduced a fine of $5 to those who refused. One Minister Jacobson declined the vaccine over concerns about its safety and, upon refusing to pay his fine, challenged his conviction all the way up to the Supreme Court.

The Supreme Court upheld the city of Cambridge’s right, as well as the right of the state of Massachusetts, to impose both the vaccine mandate and the fines associated with refusal. The Court found that states do have the right to pass laws which protect the public health, even if those laws interfere with individual rights, provided that such laws are reasonable.

In fact, vaccine mandates had already been upheld in various contexts prior to this case. According to the findings in this case, “the principle of vaccination as a means to prevent the spread of smallpox has been enforced in many States by statutes making the vaccination of children a condition of their right to enter or remain in public schools. Blue v. Beach, 155 Indiana 121; Morris v. City of Columbus, 102 Georgia 792; State v. Hay, 126 N.Car. 999; Abeel v. Clark, 84 California 226; Bissell v. Davidson, 65 Connecticut 18; Hazen v. Strong, 2 Vermont 427; Duffield v. Williamsport School District, 162 Pa.St. 476.”

But Jacobson v. Massachusetts also empowered states with the right to impose penalties upon those refusing the vaccine. This dimension of the precedent has been challenged on numerous instances since that time and has been upheld repeatedly. While Jacobson v. Massachusetts built its logic on existing vaccine case law history, this is often pointed to as the landmark case that institutionalized the right of public institutions to mandate vaccines to the end of protecting public health.

What does the vaccine mandate mean for college students?

There are two core considerations in this legal precedent. First, it is the right and responsibility of public institutions such as colleges and universities to take steps to mitigate public health dangers. With more than 40 million Americans infected, and more than 600,000 deceased in the roughly 18 months since COVID-19 crashed onto our shores, the public health risk is indisputable. So too, says legal precedent, is the right of colleges and universities to make vaccination compulsory for attendance.

For those who claim religious exemption and for those who have a valid medical reason for being unable to receive a vaccine, most schools with mandates are requiring a weekly COVID test. Otherwise, many students with anti-vaccination sentiments now face a choice between inoculation and disenrollment. More than a century of legal challenge accords colleges and universities this right in any state where there is no explicit prohibition of such a mandate.

That said, a second dimension of the original precedent also accords each state the authority to intervene. In other words, as with other public entities, schools serve the interests of the state. States like Florida and Texas, having deemed it in the best interests of their public health to prohibit vaccine mandates, do have the authority to do so.

The Patchwork of American Public Health

Ultimately, this doesn’t much distinguish the current stage of the pandemic from any other stage. America, in all of its diversity, will approach vaccinations on college campuses with the same regionalism and political tribalism that have marked attitudes toward lockdowns, masks, and broader public health messaging. Strategies will differ from one state to the next, and so too will public health outcomes. Outcomes will likely therefore also differ from one campus to the next. In other words, you can add vaccination policy to the list of factors that you must now carefully consider when shopping for colleges.

If you’d like to learn more about the intersection between COVID-19, education, and vaccination, check out a few of our favorite expert interviews on the subject:

• How COVID-19, teaching, privacy, and virtual worlds intersect | Interview with Dr. Tom Boellstorff
• How new mRNA vaccine technology battles COVID-19 | Interview with Dr. Robert Lang