Vaccine Mandates and Education
The politics and the science are in conflict.
Inside Higher Ed (“Vaccine Mandates: The Next Political Battlefront“):
As a small but growing number of colleges announce plans to require students to be vaccinated against COVID-19 for the fall semester, college administrators who are deciding whether to follow suit face a politically fraught landscape.
At least 10 colleges have announced plans to require all students to be vaccinated against COVID, with the University of Notre Dame joining the list Wednesday.
Many legal experts agree that student vaccine requirements will likely stand up in court. But there will likely be court battles.
“I think we’re going to see legal challenges, because my sense is that this issue is very quickly becoming far less a legal issue or even a science and data and facts issue and it’s becoming a political issue,” said Peter McDonough, vice president and general counsel for the American Council on Education. ACE recently released an issue brief to aid college leaders in deciding whether to require or encourage vaccines.
“Colleges and universities embrace science and data and facts, and there seems little doubt at this stage with [more than] 150 million shots in arms in the United States that the science and the data overwhelmingly support the fact that COVID vaccines are the best and quickest way out of the pandemic and the best promise of bringing students and their campuses back to something approaching normal,” McDonough said. “Then the question becomes how do you get here. Different schools are going to be sitting in different contexts. Some are in politically fraught places in terms of encouraging and mandating vaccines. Some are going to be in a place that has state laws that are fully aligned with the idea that a college can require various vaccinations as a condition of showing up campus.”
This would seem like a no-brainer. After all, schools typically require proof of all manner of vaccination as a condition for attendance and have for decades. Given that COVID is a live pandemic, there’s no obvious objection. Any American over 16 who wants a vaccination will be able to do so well before the start of fall classes.
But, of course, the issue is politically charged along party lines:
In some states, colleges may find themselves constrained by state lawmakers. That’s already happening in Texas, where Governor Greg Abbott, a Republican, signed an executive order Monday prohibiting public or private entities that receive public funding from denying service or entry to a “consumer” due to COVID-19 vaccination status.
Elizabeth Sepper, a professor of law at the University of Texas at Austin who studies topics related to health, bioethics and religious liberty, said there’s “no question” that the order “constrains public universities in Texas from requiring proof of vaccination” for enrollment or housing. She said that the degree to which it constrains the state’s private colleges is contingent on whether they receive state or municipal funding.
Sepper lamented what she described as the “politicization of what really is an issue of public health and safety.”
“Colleges bring together people who have contact with lots of different age groups,” Sepper said. “They live together, they party together, they take classes together. It’s a no-brainer that this is a very low-hanging fruit for the sort of public health efforts we always make.”
While I pay attention to a lot of legal issues, the extent to which governors have the power to issue such orders—seemingly a reverse of the traditional police power to protect people—is well outside the scope of my amateur expertise. But it’s certainly a bad idea.
Of course, there are ways around it:
St. Edward’s University, a private university in Texas, which had previously announced a vaccine mandate for students and employees, amended its policy in response to the executive order. (The university receives state funding in the form of student aid.) While the original vaccine requirement, announced March 29, already outlined several categories under which individuals could request exemptions, the amended policy clarified that students can simply decline to share their vaccination status or to provide a reason for why they want an exemption.
Justin Sloan, vice president for institutional effectiveness and planning at St. Edward’s, said students who request an exemption or choose not to disclose their vaccination status will likely be subject to different health and safety protocols regarding quarantining and asymptomatic testing than their vaccinated peers. He stressed, however, that how those protocols will be different for vaccinated versus other individuals will depend on federal, regional, state and American College Health Association guidance this fall.
“We feel that, yes, it is still a COVID-19 vaccination requirement, and based on individuals’ choice through that process, we’ll ensure that we’re able to maintain and support their individual health as well as the health of all students, faculty and staff on campus,” he said.
I suppose Abbott could issue another order precluding this but I can’t imagine it would survive judicial scrutiny.
Colleges have an established track record of requiring various vaccines for students to enroll or live on campus. But much of the legal — and political — debate over COVID-19 vaccine requirements centers on the fact that the three vaccines currently approved for use against COVID in the U.S. are approved through the Food and Drug Administration’s emergency use authorization process rather than the standard drug approval process. The statute establishing the EUA process states that individuals receiving a drug approved through the EUA process must be informed “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.”
It’s possible, although not certain, that at least one of the three EUA-authorized vaccines will have received authorization through the FDA’s normal approval process by the fall. In the meantime, the nature of EUA approval looks likely to remain a target for litigation and for conservative politicians alike. Abbott’s order barring vaccine requirements specifically refers to “any COVID vaccine administered under emergency use authorization.”
The “emergency use” distinction strikes me as a thin reed, indeed. But the Defense Department, not exactly the most democratic of American institutions, has taken the same view: some one-third of servicemembers have indeed opted out in the early stages. But, as noted, that may become an academic point as there’s no reason the FDA can’t grant normal approval at this point given that hundreds of millions of us have volunteered to get vaccinated at this point, with no significant side effects. And, given the nature of mRNA vaccines, they quickly cycle out of the body, making longer-term effects non-existent. Any objections at this point are purely irrational.
At least two lawsuits have been filed, one by a corrections officer in New Mexico and one by employees of the Los Angeles Unified School District, challenging the right of employers to mandate vaccines approved through the EUA process.
The Equal Employment Opportunity Commission issued guidance in December suggesting that employers can require employees to get COVID vaccines.
“Colleges have the legal authority to require proof of vaccination for students (and already require that students be vaccinated against MMR [measles, mumps and rubella], meningitis, and other vaccine-preventable diseases), but the emergency use authorization (EUA) status of the Covid-19 vaccines raises a wrinkle,” Joanne Rosen, an associate lecturer in the Department of Health Policy and Management at Johns Hopkins University’s Bloomberg School of Public Health, said via email.
“I’m not aware of any legal precedent involving challenges to EUA-based vaccine mandates so colleges’ authority to require vaccination under these circumstances is a novel issue,” Rosen said. “However, I think colleges likely have a strong argument that they have the authority to require students to be vaccinated against COVID-19 (so long as they offer medical and religious exemptions).”
Honestly, I don’t understand why any exemptions should be granted in this case. The Free Exercise Clause has long been interpreted to allow restrictions on religious freedom so long as there’s an important secular interest; surely, public health qualifies. Those whose immune systems can’t tolerate the vaccine are much more sympathetic cases. But, until we’ve reached herd immunity, it’s not obvious why that gives them a right to spread a deadly disease. And the workarounds are unreasonable:
“We’ve almost forgotten about testing, but there are campuses that are testing their students two times a week,” he said. “If you choose not to mandate or strongly encourage vaccines, will you then default toward either continuing or ramping up your testing? Testing is costing even a small school sometimes upwards of $10 million a year or even a semester depending on how big your population is and how often you’re testing. You’re making a financial commitment as a school to continue to test in lieu of encouraging strongly or mandating vaccines.”
A related fight we’re sure to see this fall is that school districts around the country will require their teachers and staff members to get the vaccine. I don’t see how they can do otherwise. Teachers’ unions will fight this requirement, of course, but given that 1) attendance at school through age 16 is mandatory practically everywhere in the country and 2) those under 16 are currently ineligible to get the vaccine, the onus will be on teachers to get the shots to protect the students.
As you wrote, colleges and universities (even state ones) mandate many vaccinations (my kids had to receive and prove a meningitis vaccine prior to attendance). I do wonder, however, under in loco parentis concepts if universities have enhanced authorities and responsibilities to protect students even though they may be adults in other circumstances.
The consensus reading of the EUA statute , a view I share, is that vaccines (and other medical devices and drugs) authorized for use under it are not allowed to be made mandatory.
Alas, no edit function today so …
Further explanation of why
I’m starting to worry that all of these attempts to avoid vaccination based on over-reliance on the emergency use designation will have ramifications if/when we ever have another similar pandemic. Court cases that establish precedent using this–I guess I’ll call it a loophole–are establishing groundwork. If the next pandemic has a slightly higher fatality rate, and all of this precedent has been established allowing large swaths of the population to avoid vaccination, it’s going to be hard to argue that vaccination should be required.
I know this is a “slippery slope” argument, I just can’t help but follow where this logic leads and it’s troubling to me considering the fact that most epidemiologists don’t think that Covid-19 is the “big one” they have been anticipating. As a society, we appear to be learning the wrong lessons from this pandemic.
@SKI: The sources you cite note that the matter has never been adjudicated. So, how is this a “consensus”? Further, who is it this isn’t “allowed” to make it a requirement for entry? Surely, a private business establishment could. Is there a 14th Amendment argument precluding a state university from doing so?
The always-reliable Daily Mail appears to be pushing the notion that the vaccine causes women to have menstrual problems. The “evidence” for this seems to be purely anecodotal, and confined to Twitter. But that won’t stop those who want to believe that the vaccine is in fact a sterilizing drug backed by Bill Gates.
In the 1901 case Jacobson v Massachusetts the Supreme Court ruled that states can mandate vaccination notwithstanding a religious objection. This precedent still stands.
https://en.wikipedia.org/wiki/Jacobson_v._Massachusetts
To be perfectly clear, I don’t have an issue with not requiring vaccines authorized by emergency use authorization, it’s the court cases that will establish precedents going forward that concern me.
During my recent hospital stay, I noticed a few nurses had a sticker on their ID badges which said “vaccinated.” This meant they’d received a COVID 19 vaccine (though I didn’t ask whether it was one dose or both).
How about the opposite? You allow Texan students with a death wish to take classes and such, but they must wear a very visible badge proclaiming “UNVACCINATED”
@James Joyner: It is the existing consensus in health care law.
Examples:
Federal law prohibits employers and others from requiring vaccination with a Covid-19 vaccine distributed under an EUA
Can Employers Mandate COVID-19 Vaccines? Likely Not (Yet), Given Current FDA Emergency Use Authorization Status
To answer your other questions. the FDA is the agency, under federal law, that allows drugs, including vaccines, to be used at all by anyone. The act authorizing the FDA to issue EUAs requires the secretary of the Department of Health and Human Services (HHS) to specify whether individuals may refuse the vaccine and the consequences for refusal.
The FDA has repeatedly, for years, said a drug allowed under EUA isn’t allowed to be made mandatory. Under Chevron, that interpretation is to be given deference.
In the EUAs issued for the covid-19 vaccines, the Secretary did state that, in accordance with past practice, that there can be no negative consequences for refusing to get the vaccine.
That said the *best* arguments for a contrary view are contained here
@Kathy:
I would take the badges worn by the nurses to mean they’d been fully vaccinated.
@Kathy:
I believe the traditional phrasing is “Unclean”.
I keep seeing this formulation and I feel the need to point out that people whose immune systems can’t tolerate the vaccines are much more in need of herd immunity than the rest of us. They aren’t free riding typhoid Marys. Their choice is probable death or probable death. Herd immunity is their best (only?) shot at staying alive.
First, all those who can, please get vaccinated.
Second, attempts to equate COVID with the seasonal flu are/were absurd.
Now, with that out of the way, I am interested in where the boundaries are for vaccine mandates. What are the stopping rules? Academic institutions do indeed require proof of vaccination for a host of things. This is good.
They don’t require proof of vaccination for other things that also pose a threat to public health. The seasonal flu is an easy example, though it is not the only one. The numbers vary from year to year but the flu kills thousands of people each year and exacts other non-lethal significant costs to individuals and society.
Flu vaccines are widely available, low cost, and safe. And yet flu vaccines are not mandated by academic institutions (or other public/private entities).
Should they be? If not, why not? Is it that the flu doesn’t kill (or otherwise harm) enough people? That’s a reasonable stance, but then I would ask at what point on the harm scale would you change your position? And does your calculus only include deaths or does it include other health-related harms? What about economic harms? These are some of the questions I grapple with wrt COVID vaccine mandates. Interested to hear others’ thoughts.
About 16% of our hospital staff are still not vaccinated. The number is about 9% for those who have direct pt contact. I am ambivalent about this. I have no problems with making well established vaccines mandatory. We allow exemptions for medial reasons. But for a new vaccine there are multiple concerns. Not only do you have to be concerned about short and long term effects being uncovered, you have to worry about the ability of the companies to safely produce such large quantities of vaccine this quickly. We saw recent problems with the J&J vaccine. Is it unreasonable to be concerned that production issues maybe occurring elsewhere with the rush to produce large quantities?
Steve
@steve:
It isn’t unreasonable to ask the question. It is unreasonable to conclude that the risks of such issues outweigh the risks of not getting vaccinated.
Dr. Aaron Carroll released, just yesterday, a video explaining why the relatively rapid nature of the vaccine development shouldn’t raise concerns about safety.
Here’s where I’m stumbling with the whole court cases/only well-established vaccines can be mandatory.
We have a novel virus that has sparked a global pandemic. It’s not our first, and it won’t be our last.
We were able to, rather miraculously I think, quickly develop and manufacture effective vaccines that were deployed under emergency use authorization.
The voluntary vaccination of ~70% of the public should prevent the further spread of the virus. Most importantly, this will hopefully stop any variants that could be vaccine-resistant. Stopping this spread is important to the health, general welfare, and economy.
If we carve out an exception that only established, tried/tested/with years of history being proved as safe vaccines can be mandatory–and have that essentially baked into our process through court precedent–what happens if we have a pandemic with worse outcomes?
It’s tempting to think that, well, if a pandemic with a higher fatality rate comes along more people will want to be vaccinated but I’m not so certain about that. One of the key takeaways from this pandemic is that there are a LOT of people resistant to facts, science, etc.
I’d be much more comfortable if the language being used wasn’t “we shouldn’t ever mandate an emergency use vaccine” and more a “we need to address each scenario as it comes.”
Vaccine hesitancy wouldn’t be such a problem if a large number of people weren’t intent on discarding all reasonable precautions against catching and spreading COVID.
I’ve complained about this before: they won’t wear masks, they won’t lockdown. they won’t social distance, and now they won’t vaccinate.
It’s insanity, or depravity in the extreme.
I’m very much an individualist, very much in favor of individual rights. If someone wants to risk their life, that’s their problem. But the only way individual rights work, is when everyone respects the rights of everyone else. Therefore if you want to risk other people’s lives, that’s everyone’s problem, and you don’t have the right to do that.
So we have laws against drunk driving, because this endangers many lives. We should have laws against not wearing masks during a pandemic, because that endangers even more lives. And we can make vaccination compulsory for the same reason.
Liability will be interesting. While the manufacturers are indemnified, these colleges and employers are requiring their students and employees to partake of an experimental drug cocktail. That, as of now, officially, offers nothing but a reduction in the likelihood of symptomatic COVID-19. A benefit that should be a matter between an individual and their doctor.
But if these policies cause families to re-evaluate the cost-benefit of attending an on-campus college. Well, that could be very good for society. The knowledge is out there for those who seek real learning. The campus can be left to those who prioritize the “college experience”.
Canada’s having real problems. Under two percent of a population of 38 million has been vaccinated so far:
http://www.yahoo.com/news/millions-locked-down-again-canada-124453116.html
@JKB:
There is increasing evidence that vaccines stop the spread of the virus, and additionally they prevent death and serious illness.
Your statement above is deceptive and intellectually dishonest.
The economic ramifications of post-covid health problems are considerable. If you’re still downplaying this disease at this point, you’re resistant to facts.
@Jen:
It was @JKB, you’re being redundant.
@CSK:
Our problem has been acquiring vaccines since we have no production at all. The federal government had contracts with US and EU producers but many shipments were shorted or stopped. The doses are coming in now but we are way behind as the variants are running rampant. In BC they have the Brazilian variant, here in Ontario the British variant is causing about 70% of all new cases. Our hospitals are getting crushed as we have over triple the number of ICU vivid patients as we were told would start causing problems for other medical issues.
Yesterday when our premier was announcing the new stay at home order he was bragging that we had finally vaccinated 100000 people the prior day. If that is the goal we are looking at 10 months to get everyone vaccinated.
And much of this was caused by selfishness. During the first wave and early second wave most of our deaths were confined to seniors homes so people said that’s sad, but they were old anyway, let’s open up the bars. We drift in and out of various stages of lockdown and restrictions seemingly haphazardly. In February lockdown rules were changed to allow in person dining on patios and non essential retail. On Saturday we entered province wide lockdown again but with non essential retail open. Sunday the malls were PACKED. So now a stay at home order. Even stores like Walmart that sell groceries are allowed to open at low capacity but can only allow people to shop the grocery section. We will see what happens. The boomers are getting their first doses now and are bored so I am not optimistic.
@Pete S:
The article points out that the EU “put the clamp” on vaccine exports.
The large state university local to me says it will not have a Covid vaccination mandate, excluding certain employment situations mostly associated with providing medical care. They do say that unvaccinated students and staff may be required to conform to a variety of other conditions in order to be allowed on campus, possibly including regular testing, masks, and physical distancing.
They went big into online learning many years ago. Some number of unvaccinated upper-class students could probably finish without going to campus.
@Jen: and the estimated number of Covid survivors who wind up with Long Haul Covid was just increased from 10% to 13%.
JKB is one of those Covid patients whose lungs are failing, they’re in the ICU on a respirator, and they’re scrawling on a notepad, “this is a hoax!”
My 2 cents is that it has long been established that schools and a handful of other institutions/employers can require proof of vaccination before you can get back to school/work, and of course you need to usually show proof of your shots when traveling to another country, but as far as Employers in general requiring that you prove you have been vaccinated before they will let you back in the office, or something like that, well…oddly enough despite my wanting to feel safe around other employees in an office environment I get why some folks do not want it to become the Law that employers (for example, the Hiring Manager at McDonalds, or my boss at the Marketing firm I work at) can force you to show that you are fully immunized against Covid.
I would technically be okay if when our firm asks us all to pretty much go back to the office that anyone who interacts with me in the office does not have to give up their privacy and tell me they got the shot as long as they made sure to follow the best/safe practices developed during the Pandemic where they keep a minimum distance between me and them (so even if they are not masked the distance between us does most of the heavy lifting in case they are not vaccinated and I could have ended up w/Covid if I were not vaccinated, which I plan to be asap).
As proud as I will be to get vaccinated, I still only plan to tell a handful of folks that I got the shot.
My alma mater Rutgers is going to require all students to be vaccinated before they will be allowed on campus. Oddly this rule doesn’t appear to apply to faculty or staff. I believe this makes them the first public university to require vaccination.
https://www.rutgers.edu/news/rutgers-require-covid-19-vaccine-students
@CSK:
Those were reported here as retooling the plants. I mean, it was obvious what was happening, but we kept being told about the factories upgrading so we could get even more vaccine later
The liability question will come down to who dares to sue for wrongful life, because widespread COVID vaccination kept them alive and healthy.
Seriously, with so many millions of vaccine doses, there are bound to be some issues. Some people will develop X condition after vaccination and blame it on the vaccine. But thus far, after over half a billion doses worldwide, the only serious side effects reported are possible blood clots with the AstraZeneca vaccine, and the proportion has been very small.
@Kathy:
I hadn’t heard that analogy before. Thanks; I’m going to steal that.
@Jen:
There’s nothing intellectual about him, honest or dishonest.
He’s like a bot, but cheaper to run. He repeats lies and talking points, and understands nothing.
@Gustopher:
Ah, but is he capable of going from “Four legs good, two legs bad!” to “Four legs good, two legs better!” while thinking he’s saying the same thing?
@SKI:
On the prohibition against making mandatory an EUA, expanding on the counter argument you linked to:
https://www.law.cornell.edu/uscode/text/21/360bbb-3
Bolding is mine.
I hope a lawyer will give an opinion on this, mine is worth precisely diddly, but to my eye the law means one can refuse but does not ban consequences for refusing. The Secretary need but spell them out. I would bet this is what the smart guys at Rutgers are hanging their legal hat on.
@dazedandconfused: except the Secretary specifically said there wouldn’t be consequences for refusing.
Funny thing, using “Teachers’ unions fighting mandatory vaccination of teachers” as my search phrase yielded Covid-19: About 80 Percent of K-12 Teachers and Staff Have Gotten a Vaccine Dose. Is this another of those assertions where “I haven’t really studied the data?”
@Kathy:
That’s why you’re guaranteed to get thousands of parents who are convinced vaccines caused their baby’s autism. Autism typically presents between 12 and 18 months, and in that same time frame, kids get vaccinated for
Measles
Mumps
Rubella
Diphtheria
Pertussis
Polio
Hepatitis B
Tetanus
Hib
Strep pneumoniae
Chickenpox
Hepatitis A
and 4 Meningococcal baddies.
If you have 3.8 million babies born per year, and 1 in 54 are diagnosed with autism within a six-month period coincident with getting a dozen vaccinations, it is a mathematical certainty that thousands of kids are going to exhibit signs of autism within 1,2,3 days of getting a vaccine.
@DrDaveT: I’m okay with either term. 😛
@SKI:
I had been unaware of that. Is it something he said or something he wrote in his authorization?
Either way, I see nothing that prevents the Sec from changing his mind.
SKI- Maybe i didnt make it clear, but the issue is not just the development of the vaccine. It is also the production side. At any given time I have at least one or two of our commonly used drugs that have been around for a long time because of problems on the production side.
Steve
This last year clearly illustrates who is for community health and those who do not care.
My governor and over half of our legislature failed this test horribly. At the point when masking and lockdowns became political, I knew this was going to break bad.
To the plus, Trump is no longer President. His spring daily pressers were an utter embarrassment and contributed to his loss.
It is helpful to know where your foes are.
@Teve:
Ya gotta give em the the dip-tet boosters yearly or else they’ll develop lock-jaw and nightvision.
I don’t know that that’s the case. As noted above most teachers have already chosen to get vaccinated and out here the teacher’s union fought to get us up higher on the list (tier 1b).
I don’t think we merited being so high up, above hospitality and grocery workers who have more varied daily contact, but everyone that could in my school got it.
We have laws and regulations around insurance requirements and driver’s licences and speed limits and impaired driving.
I do not get the freak-out by some. Civilization requires a bit of compromise, yo.
@steve:
Not sure what words are missing here and therefore what you are trying to claim about the production of drugs but my underlying point stands – any rational risk-balancing weighs extraordinarily heavily towards getting vaccinated.
@dazedandconfused:
It is part of the authorization – the section that must be provided to patients as part of informed consent.
Theoretically, you are correct. The new HHS Secretary could revise the EUA (they have several times already). But they won’t.
They are going to weigh the impact of that (reversing longstanding policy, the political firestorm it would create) and consider that it would be counter to how public health experts suggest approaching reluctant patients and decline to revise that aspect – especially given that Pfizer indicated it expects to file for full authorization this month.
@Just nutha ignint cracker: I’m not claiming that teachers are unusually likely to be vaccine refusniks, just that their unions will likely fight requirements to force those who do refuse to comply or lose their jobs.
@SKI:
Were I in the Sec’s shoes I would simply ignore calls to open to the unvaccinated colleges which are insisting on vaccinations. If pressed, say that the law only applies to penalties from the government, private institutions are free to do as they wish on the matter. Make the whiners sue, as by the time that suit gets a day in court the issue will be well on it’s way to being moot.
@dazedandconfused: The Secretary of HHS isn’t going to field those calls. That isn’t how this works.
Schools and employers will make their choices. They will get sued in court. Courts will issue rulings that may of may not get appealed.
Meanwhile, the FDA will grant one or more of the vaccines full authorization mooting the issue for most.