The list of colleges that will require students or employees to be vaccinated against Covid-19 this fall has been dominated by private institutions. That may be about to change.
Rutgers University, a public institution, was the first in the nation to announce a vaccine mandate, on March 25. Until Thursday, just two of its public peers had followed suit. But now a wave of public colleges, led by a pair of heavyweight university systems — the University of California and California State University — said they, too, would require vaccines.
The California systems are hedging their bets by waiting until vaccines are formally approved by the Food and Drug Administration to make their mandates official, avoiding questions about the legality of requiring vaccines that remain under emergency-use authorization, or EUA. But on Friday the University System of Maryland and the University of Michigan at Ann Arbor announced requirements without such contingencies. The Maryland system will require all on-campus faculty, staff, and students to be vaccinated, and Michigan said it would require the vaccine for residential students.
Those announcements may mark a watershed moment for public colleges that have hesitated to take similar action. (The California State system, in particular, has a penchant for trailblazing, having been one of the first to declare last May that its fall semester would be fully online.)
Whether to require vaccination is a thorny question for any college leader to navigate, but it’s especially so for those at the helm of public institutions, which are bound by state policy — and state funding. Five states — Florida, Idaho, Montana, Utah, and Texas — have enacted legislation that prohibits government agencies, including public colleges, from requiring people to receive a Covid-19 vaccine. (The governors of those states are Republicans.)
New Jersey has not announced such a ban, but the prospect of legal action has cropped up at Rutgers University, which on Thursday fielded a letter from an anti-vaccine advocacy group asking it to withdraw its requirement. Rutgers’s mandate, lawyers writing on behalf of the Informed Consent Action Network asserted, “violates federal law, international laws, civil and individual rights, and public policy.” (Rutgers’s position, a university spokeswoman wrote in an email to The Chronicle, “is consistent with the legal authority supporting this policy.”) ICAN sent a similar letter to Princeton University, a private institution.
Oakland University, a public college in Michigan that will require all students living on campus to get vaccinated, has received about 300 letters from a “very, very organized anti-vaxxer movement,” according to the university’s president, Ora Hirsch Pescovitz. Roughly a hundred of the letters were identical. Many, she said, were also sent to Republican legislators.
‘Hope Is Not a Strategy’
But Pescovitz thinks a vaccine mandate is the only way to achieve herd immunity, and a satisfactory degree of safety, on a college campus. That’s a conclusion she is perhaps uniquely qualified to draw. She’s a pediatric endocrinologist by training, with a specialty in puberty. Pescovitz’s expertise tells her that college students “will not always do the right thing.” They might flout campus safety protocols — as many did this past year — or opt not to be vaccinated.
So it’s not enough, Pescovitz said, for colleges to “strongly encourage” vaccination or to offer incentives to students who do get inoculated. “Hope,” she said, “is not a strategy.”
At least one other university leader seems to disagree. “We don’t have a vaccine-hesitancy problem among SUNY students,” Jim Malatras, chancellor of the State University of New York system, told Spectrum News. “What they’ve been demanding from us is eligibility, and now that the state has opened eligibility, they’re signing up.” Malatras added that if, by midsummer, SUNY leaders felt not enough students had been vaccinated voluntarily, the system would consider a mandate.
By that time, it’s “very likely” that the Pfizer and Moderna vaccines will receive full FDA approval, as long as safety data remain positive, said Fred Ledley, director of Bentley University’s Center for Integration of Science and Industry.
Pescovitz hopes the vaccines are approved by the time Oakland’s mandate takes effect this fall, but she’s not “depending on that to move forward with this mandate.” The data on all three vaccines available in the United States show that they are safe and effective, and present less risk in comparison to Covid-19 infections.
“There is no question that the risk-benefit [comparison] here, even without full FDA approval, just with the EUA, is overwhelmingly in favor of” vaccination, Pescovitz said. Lawsuits are a risk she’s willing to take to ensure the health and safety of the Oakland community, she said.
Any legal challenges to vaccine requirements that center on the vaccines’ EUA status are likely to continue, even if vaccines are fully authorized before the fall, said Hailyn Chen, a co-managing partner in the law firm Munger, Tolles, and Olson. “Those lawsuits will simply be amended to assert the more traditional anti-vaccine arguments that are based on, for example, equal protection and privacy rights.”
This isn’t the first time colleges have faced legal challenges to vaccine requirements. Last year the University of California system prevailed in a lawsuit that challenged a July 2020 executive order requiring students, faculty, and staff members on campus to receive the seasonal flu vaccine. That case, Chen said, upheld a university’s authority to require a vaccine as a condition of entering campus property, and marks the “closest analogue” we have to a potential vaccine-mandate lawsuit.
Tom Stritikus, president of Fort Lewis College, in Colorado, likened the public institution’s Covid-19 vaccine mandate to a longstanding requirement that students receive the vaccine for measles, mumps, and rubella. In fact, Fort Lewis’s new policy is modeled after it and is consistent with Colorado law, he said. “There’s nothing in the EUA statute that prohibits an institution from requiring the vaccine.”
‘Too High a Hill’
At Oakland, legal questions and regional politics meant that Pescovitz “didn’t do everything I really wanted to do.” Ideally, she said, she would have required all students, plus faculty and staff members, to get vaccinated. But that may have been “too high a hill for us to climb,” she said. While Michigan voted for Joe Biden in 2020 and has a Democratic governor, both legislative chambers are Republican and Oakland County, where the university is located, has leaned Republican.
The compromise — “sometimes perfection is the enemy of good,” Pescovitz said — was to allow students who aren’t vaccinated to enroll and attend classes, but not to live on campus (though Oakland will make exceptions for students with religious or medical exemptions). At Oakland, a primarily commuter campus, with only 20 percent residential students, that decision was likely to have a smaller footprint than at majority-residential institutions.
Reception to the announcement within the university was positive, according to Pescovitz. Along with the mandate, Oakland opened up a series of vaccination clinics, for which over a thousand people signed up within five hours.
Proof of vaccination, Pescovitz added, is likely to be incorporated into the online health-screening tool Oakland students already complete each day to come on campus.
Because all students living on campus will have been vaccinated under the mandate, they won’t have to wear masks in the dorms; masks will still be required in class. Vaccination will be required, though, to attend campus sporting events and other gatherings of students “in close proximity,” Pescovitz said. “These will be perks, so they will be carrots and not sticks.”
Francie Diep contributed reporting.
