Mandating COVID-19 Vaccination for College Students, What Can Colleges Enforce?

By: Briscoe Robinette

As COVID-19 vaccines become increasingly available, there is hope for some semblance of normalcy returning to the lives of citizens. However, as colleges and universities look towards planning a safe return for all students this upcoming fall semester, the debate over mandated COVID-19 vaccinations arises. Many U.S. universities have already declared that students must be fully vaccinated in order to return to campus. They see mass vaccination as a way to provide a safe and healthy environment for students to return to, while other universities question both the legality and morality in requiring a vaccine that is only available under emergency approval. Mandating the vaccine would help to create herd immunity on campuses, with many arguing that students have the right to feel safe and not at risk for contracting COVID-19 while on campus. However, many also argue that colleges do not have the right to force students to get vaccinated as that is a personal choice, especially considering that the FDA has only allowed the vaccine to be administered for emergency use. Furthermore, mandating COVID-19 vaccinations also raises the issue of accessibility, as it is more difficult for some students to acquire the vaccine than others. 

Colleges have been mandating vaccinations for many years. For example, a survey of 100 colleges and universities found that at least one vaccine was mandated by almost all of the institutions according to NPR. The COVID-19 vaccine raises different legal and ethical questions though, as the vaccine is only authorized for emergency use. Therefore, what legal basis does higher education institutions have in requiring students to receive the vaccine, especially considering the emergency authorization status of the vaccination?

Generally, issues of public health and the health of citizens fall mainly under the jurisdiction and authority of state and local governments and the power of those entities over mandating vaccinations has been cemented for many years. Most notably, in Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358 (1905), where the Supreme Court ruled that mandatory vaccinations fell under a state’s police powers, and that states had a duty to protect the health of their citizens.

After the Board of Health in Cambridge, Massachusetts made smallpox vaccinations mandatory, the plaintiff in error, Jacobson, was tried in a trial court for refusing to receive a smallpox vaccination. Jacobson introduced multiple arguments, including a bad reaction to a previous vaccine, regarding his refusal to be vaccinated but the trial court dismissed his arguments and found him guilty. The trial court ruled that Jacobson could not be harmed by the vaccination law since the state did not have the power to force him to get a vaccine. Therefore, if he chose not to get vaccinated, the most harm he would incur would be having to pay a fine. In Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358 (1905), the Supreme Judicial Court of Massachusetts then looked at the case and sustained the ruling of the trial court. The court ruled that an individual’s right to liberty can be reasonably regulated for the safety of the general public. Therefore, the court stated that local boards of health can require mandatory vaccination “when necessary for public health or safety,” as long as the Board of Health did not act in an unreasonable manner. In their ruling, the court stated that the police powers of the State have authority over regulating public health. Furthermore, the court declared that individual liberty as outlined in the Constitution does not give an individual the right to no regulation if regulation is necessary to ensure the safety and health of the public. 

The power of the federal government to implement mandates, however, has not been tested in courts. Furthermore, the emergency authorization status of COVID-19 vaccine and how that affects vaccination mandates has also not been tried in court, making the current situation nuanced. 

As mentioned above, it is normal for universities to make certain vaccines mandatory. For example, AP News reported the recent court decision that universities in the University of California system could legally require students to receive their flu shots. Therefore, there is a solid legal basis in requiring vaccinations for college students. However, the main concern regarding mandating the COVID-19 vaccine is its emergency status. Legal scholars believe that status makes the argument more nuanced and subject to challenges in court, especially from the anti-vaccine movement. Additionally, there is no federal instruction on whether or not colleges can require students to receive the COVID-19 vaccine. Therefore, it is likely that the problem will vary state by state as different states and governors have been taking different approaches regarding COVID-19 regulations and vaccinations. For instance, the governors of Florida and Texas have both banned businesses from necessitating proof of vaccination from customers, which could potentially affect the ability of higher education institutions in those states to enforce mandatory COVID-19 vaccinations.

An issue brief recently published by the American Council of Education outlines a framework to help think through the question of mandatory COVID-19 vaccinations for college students as more information is released by different outlets, such as the government, researchers, or health officials. The brief argues that even given the emergency authorization of the COVID-19 vaccine, colleges should be able to legally require the vaccine, and that it could be similar to flu vaccine mandates at colleges and universities. The main barriers to vaccine requirements mentioned in the brief are accessibility (especially in terms of socioeconomic status and race), international students’ ability to get vaccinated by approved US vaccines, and distrust due to the history of medical racism in the U.S. 

The situation will completely change; however, if any of the COVID-19 vaccines receive official approval from the FDA. The COVID-19 vaccine would then become the same as any other vaccine already mandated by state law, making it much easier and less challenging legally for universities to mandate the vaccine. 

In North Carolina, state law already mandates that college students receive seven different vaccines. Therefore, there is a solid legal basis for requiring certain vaccinations for students, with the only issue here being the emergency status and accessibility of the vaccine. 

Multiple colleges and universities in North Carolina have already implemented mandatory vaccinations for students returning to campus for the fall of 2021. Duke University is one of those universities, citing the requirement as “the only way to facilitate a return to normal and robust campus life.” Duke already requires several other vaccinations for students on campus. On the other hand, Virginia Tech argued that legally, they are unable to mandate COVID-19 vaccinations until they are officially approved by the FDA. Other universities, such as the UNC system, are waiting on more information from officials and are only encouraging students to get vaccinated. 

Additionally, the distinction between public versus private universities in terms of their ability to mandate the COVID-19 vaccination is also an important aspect to consider. Currently, the situation varies state by state, with the majority of states allowing both private and public universities to decide themselves if they want to implement a vaccine mandate. However, since Texas has prohibited both private and public institutions from banning services or entry to someone because of their vaccination status, that would affect both private and public universities (since most private universities still receive government funding). Some state school systems are also stating that since they are part of the state government, they cannot legally mandate vaccinations. The current situation is unique due to the emergency status of the COVID-19 vaccine, and as the beginning of the fall semester draws nearer, more information should be available. 

Therefore, the legal right of universities to mandate the COVID-19 vaccine remains a grey area issue. Vaccine mandates for college students have a historical and legal grounding, but the legal basis in mandating a vaccine under emergency authorization has yet to be considered. Therefore, if the vaccine is officially approved by the FDA, it will be much easier for universities to mandate COVID-19 vaccinations as they will no longer be unique as compared to other mandatory vaccines. However, the timeline of the official approval of COVID-19 vaccines is uncertain.