After universities responded to the spread of COVID-19 by transitioning to online learning in spring 2020, they soon faced a barrage of lawsuits seeking refunds of tuition and fees.
Now, as vaccines can help facilitate a return to campus, some institutions, such as Rutgers University, Brown University, and the University of Notre Dame, have already announced that students must be vaccinated before the fall 2021 semester begins.
As other institutions of higher education consider whether to require students to be vaccinated before returning to campus, they will have to balance whether doing so will create a new wave of litigation.
California sued over flu vaccines
Mandatory immunizations during a public health crisis were approved by the U.S. Supreme Court in Jacobsen v. Massachusetts. Today, all 50 states have laws requiring specified vaccines for K-12 students enrolled in public schools, with certain medical or religious exemptions—but there are no state laws mandating COVID-19 vaccines for school-age children or college students. Some states are considering bans that would prohibit universities from requiring COVID-19 vaccines.
Thus, the decision to mandate certain vaccines in order for students to enroll in higher education classes rests with university leadership and is not without potentially significant legal risk.
For instance, the University of California (UC) was sued after it mandated the flu vaccine for the 2020-2021 flu season in the Kiel v. UC case. While UC won the case, universities should note a key distinction: historically, only vaccines with full FDA approval have been mandated.
There is little precedent indicating whether mandatory COVID-19 vaccines will receive the same treatment in court, as the available vaccines currently have only FDA emergency use authorization.
In addition, at least a dozen states are considering, or have enacted, legislation providing universities with limited legal immunity for claims related to COVID-19, and some legislation includes protection related to claims for tuition and fees.
Thus, plaintiffs’ lawyers currently engaged in such suits may shift their focus to suits challenging university vaccine mandates.
Vaccines’ role in reopening
Several benefits appeal to universities weighing whether to mandate COVID-19 vaccines. Foremost is increased campus safety for students, faculty, and staff.
Second, and relatedly, with a fully vaccinated student body schools would perhaps be able to reopen on-campus activities more fully with less reliance on testing or tracing.
Third, for those schools already embroiled in litigation following the temporary transition to online learning, a vaccine mandate could be another way to cut off the accrual of potential damages.
On the other hand, universities must be mindful of the varying access to vaccines across the country, and whether such a mandate might disproportionately impact students from varying locations or socioeconomic backgrounds. In addition, vaccine mandates will need to include certain exemptions for medical or religious reasons.
Further, because there is no settled law on whether a school can require a vaccine that has received only emergency FDA approval, that in and of itself may generate legal risk.
As two universities in Texas and Florida recently discovered, a decision to mandate COVID-19 vaccines may be blocked or limited by executive or legislative action. St. Edwards University in Texas and Nova Southeastern University in Florida first announced a mandatory vaccine policy before being forced to back-peddle when their respective governors issued executive orders banning so-called “COVID-19 Vaccine Passports.”
The Texas ban applies specifically to state agencies and organizations that receive public funds “through any means,” which means it will likely apply to all public and some private universities. Florida went one step further to prohibit any business from requiring a “COVID-19 Vaccine Passport.”
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To accommodate the Texas governor’s April 5, 2021 order, St. Edwards announced that its qualifying vaccine exemptions would include a student “declining to provide the university an individual’s COVID-19 vaccination status.”
Treading carefully
While COVID-19 vaccines appear to be a crucial step to returning to in-person university life, universities are going to have to weigh whether imposing a mandate (and the associated legal risk) outweighs strongly encouraging vaccination, perhaps in combination with enhanced testing and tracing.
Over time, as COVID-19 vaccines become more widely available, higher education administrations will likely gain further insight into whether they can and should require students to be vaccinated before returning to campus.
In the meantime, universities should tread carefully and consult legal counsel to understand the federal, state, and local laws at issue before making this critical policy decision.
Mike Vernick leads Akin Gump’s government contracts group and maintains a practice focused on higher education and other sectors. Brennan Meier and Molly Whitman are counsel, and Jessica Mannon an associate, in Akin Gump’s litigation practice.
