We have entered a new phase in the COVID-19 pandemic in the United States.
We no longer wake up every day to increasing numbers of deaths, infections, and reminders about social distancing and vaccine shortages. Instead, we now read about record low numbers of infections, limited fatalities, and a domestic surplus of vaccine so large that we are now vaccinating children as young as 12 and may be exporting it by June.
And, just last week, the CDC dispensed with mask guidance for vaccinated people. This prompted President Biden to host his first “maskless” appearance of his presidency. For college leaders planning the summer and fall semesters, it’s a 180-degree turnaround that we were afraid to hope for just last year.
Yet here we are. The question now vexing colleges is how to safely reopen on-ground learning with a pandemic in retreat. It’s a nice problem to have, but it still has to be solved.
Living in a reopened world
Today, students live in a world where they are bombarded with news about social distancing restrictions being lifted, mask mandates rescinded, and more businesses reopening without restrictions.
For those who are fully vaccinated, it’s now possible to go shopping without wearing a mask. Movie theaters, gyms, and bars are open without limitations.
When students head to campus this fall, they will have lived in this reopened world for an entire summer. They will not want to observe tighter restrictions in dorms, on campus, and in sporting events. Yet the risk of outbreaks remains real for those who have not been vaccinated.
Colleges should now be evaluating whether they can require vaccinations for students. The legal answer to this question is almost certainly yes at the federal level. For more than 100 years, the law in the United States has supported the ability of colleges to require students to be vaccinated prior to attending school.
Some uncertainty exists around the current vaccines, which are being offered under special, emergency approval by the FDA. Public institutions appear hesitant to mandate vaccination until full approval is obtained.
More from UB: State-by-state look at colleges requiring COVID-19 vaccines
But no such barriers exist for private colleges, which are free under federal law to mandate vaccination now. An increasing number of them have. The only universal limit to a vaccine mandate is to accommodate those with a bona fide disability who cannot take the vaccine.
State laws on this issue can vary. Some states have passed or are considering prohibitions on mandatory vaccinations. Most of these laws apply only to government actors, but a few apply universally to any “business” in the state, including colleges.
Also, some governors have issued executive orders to keep state actors from requiring vaccination to access services. These prohibitions generally only apply to state institutions, but some are broad enough to sweep in private colleges that accept state funding such as grants and tuition assistance. Institutions should check their state laws to be sure that they are not limited by any of these statutes or orders.
Risk of illness is still real
Beyond legal considerations, there are social, political, and moral concerns. Some institutions may feel that mandatory vaccination of students would not be in line with their campus culture. Others may find that mandating the vaccine in their local or state political climate would makes them a target for anti-vaccination protests or litigation. Finally, some may have significant numbers of conscientious or religious objectors that make mandatory vaccinations impractical.
For these institutions, it will be important to find other ways to maintain a safe campus environment. The risk of illness is still real for those who refuse the vaccine.
These institutions may consider granting or restricting access to certain activities based on vaccination status, if that is permitted under their state’s laws. They might also leave in place distance learning for students who prefer not to be vaccinated.
Finally, they should also consider public health education campaigns, vaccination events, and incentives for students to obtain the vaccine as a way to protect the health of the campus community.
Edward M. Cramp represents institutions of higher education around the United States in accreditation, regulatory, litigation and transactional matters serves as managing partner of Duane Morris’ San Diego office.
