More colleges are requiring coronavirus vaccines. How will they enforce them?

by Jeremy

Less than half of the students at Fort Lewis College, a public liberal arts school tucked away in mountainous rural Colorado, are Native American.  The pandemic has hit this population particularly hard nationwide, which factored into the college’s move, a spokesperson said, to become one of the first U.S. higher education institutions to mandate that students receive the coronavirus vaccine from participating in on-campus activities this fall.

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It’s a decision the school weighed heavily. While the U.S. races to immunize its population against the coronavirus, some people refuse to get vaccinated for several reasons, including that the shots were developed under a speedy timeline. According to polling done in late March, a quarter of U.S. adults said they won’t get vaccinated, though that share was shrinking in the preceding weeks. A temporary pause in the administration of the Johnson & John shot to investigate a rare potential side effect added further complications.  Meanwhile, a partisan debate is raging nationwide about whether employers, businesses and other entities require people to get the shots.

At Fort Lewis, reactions to the vaccine mandate were decidedly mixed, said the spokesperson, Lindsay Nyquist. However, she said that the college is crafting messaging it hopes will help assuage students’ and families’ concerns about the requirement. The college enrolled more than 3,200 undergraduates in the fall of 2019, according to federal data.  Other colleges could follow its lead. A fast-growing contingent of public and private schools require the vaccine this fall. They range from prominent research universities, including Rutgers and Cornell, to small private liberal arts colleges like Hampshire and Sarah Lawrence.  When you take a stand on an issue, this is bound to happen,” Nyquist said of criticisms of the school’s decision. “But we want to communicate openly with our families.

Higher ed vaccine mandates and the law

Colleges typically require incoming students to be vaccinated against certain diseases, such as measles, mumps, and rubella and are on solid legal ground to do so. A California court late last year upheld the University of California system’s mandate for the flu shot, a vaccine more colleges have begun to require. The coronavirus vaccines being administered in the U.S. add a new twist. They have been approved by the U.S. Food and Drug Administration under an Emergency Use Authorization, which gives the agency the ability to make them available more quickly than usual because of the public health crisis.

According to legal scholars, it’s a designation that may make some institutions more hesitant to enforce a requirement. Because colleges have never ordered students to receive a vaccine authorized under a EUA, they are entering the uncharted legal territory.   The law governing EUAs is also unclear on this, Dorit Reiss, a law professor at UC Hastings College of the

Law said in an email. It requires people receiving a EUA-approved vaccine to be told they can refuse it but mentions nothing about employers or colleges, which typically have the power to mandate vaccinations. Courts haven’t ruled on this yet, Reiss said. “So universities may be concerned that courts will strike down a mandate under a EUA,” Reiss said. The

California State University system and the UC system say they will only require the vaccine once the FDA gives one or more shots full approval, aligning them with other shots colleges require. Private colleges are more likely to instruct them because they aren’t governed by the same laws as their public counterparts, said Scott Schneider, a higher ed law specialist, and partner in the Austin, Texas, office of Husch Blackwell. He doesn’t think challenging litigation mandates would succeed against any college because they already have legal backing to require vaccines.

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