Are COVID-19 Vaccine Mandates at Universities Legal?

Interview with Vaccine Law Scholar – Prof. Dorit Reiss

Joel Cohen (Host): Hello, and welcome to TalksOnLaw. I'm Joel Cohen. Today, we're talking about law related to COVID-19 vaccines and, specifically, how it relates to school and university mandates. And we're joined remotely by a leading vaccine law expert, Professor Dorit Reiss of UC Hastings. Welcome back to TalksOnLaw.

Dorit Reiss (DR): Nice to be back.

Host: Professor, we spoke previously about vaccine law more broadly at a constitutional level, but I wanted to have you back to talk about vaccine mandates in schools. There's been some recent developments. Maybe a quick overview to get us started?

DR: So over the past several months, hundreds of universities have mandated the vaccine for their students. Policies vary, some universities are going to wait until full licensure to enforce the mandate, to have them become operational. Some are already mandating it. Universities offer different levels of exceptions. I think all the ones I’ve seen offer both medical and religious, but how tight the exemptions are varies. And some universities are taking the approach of saying we're mandating immediately, but until there's a full license, we're going to give completely open exceptions. That's going to disappear once the vaccine is licensed.

JC: And what do you mean by license? Here, are you talking about the emergency use status of these vaccines, that they're licensed as emergency use?

DR: Exactly right. Right now, the vaccine is only authorized for use under an emergency use authorization, but Pfizer has already submitted a request for full licensure, and Moderna has submitted one but it's saying that it's still rolling in data. The application it's not complete. So at some point, at least Pfizer's vaccine should be fully licensed. 

Klaassen v. Trustees of Indiana University

JC: I know there have been a number of cases litigating this. One recent federal case that was decided is Klaassen v. Trustees of the University of Indiana. What happened in that case?

DR: So Klaassen is one of four challengers in federal courts against vaccine mandates right now. In that case, eight students in the University of Indiana sued the university challenging its vaccine mandate, both on constitutional grounds saying that you can't mandate a vaccine under an Emergency Use Authorization, an EUA  and saying that the mandate is in tension with Indiana's passport law. The last claim was dropped by the plaintiffs before the case came in, after an opinion from the attorney general that said that the mandate is okay. But the others went forward to court. Interestingly, out of those eight students, six had religious exemptions already and one, according to the court decision, would qualify for a religious exemption if she asked but never asked. But these students were also challenging the fact that the university said if you have an exemption, you have to be tested every two weeks and you have to wear a mask.

JC: So here they gave an alternative, some type of accommodation that if not vaccination, there's other steps that can be taken.

DR: Exactly. You also have to apply for either a medical or religious exemption. So you have to fit into one, although my impression – and I don't have any evidence of that – is that the university was granting exemptions pretty much on demand.

JC: And what were the legal grounds? What was the legal underpinning of the Klaassen case?

DR: The decision focused on the constitutional issue. Can you mandate the vaccine for university attendance? And the courts gave a very thoughtful detailed analysis of the constitutional issues there. The court said, unlike the university, we don't think that there's no right at all. The university argued that attending a higher education institution is not a right, and therefore, the students can choose not to attend and nothing has been affected. The court said we don't completely agree because you can't condition a service on something that does touch on a right, and the right to refuse medical treatment is a right, it affects your liberty interest. However, the court also said the effect on your liberty interest is not a violation of a fundamental right. You don't have a fundamental right to attend a university unvaccinated. It’s just kind of a regular right, which means that the standard use was rational basis review, whether the measure was reasonable, rather than the higher bar of strict scrutiny which would require a very narrowly tailored measure that protects a compelling interest.

Jacobson v. Massachusetts

JC: In the decision, did the judge cite the famous and, for some, controversial case Jacobson v. Massachusetts, the Supreme Court case on vaccine mandates from 1905?

DR: The Court did. The Court said Jacobson used rational basis, although the term didn't exist yet, the Court said that Jacobson used an equivalent to a rational basis review and did a reasonableness analysis. But the Court didn't stop there. It also said, looking at later jurisprudence, that it looks like the right measure for this kind of situation where a university imposes a mandate is rational basis given other decisions by courts. 

Status of emergency use of vaccines

JC: So the court in Klaassen was looking at the constitutionality of vaccine mandates. Did the decision get into the question about emergency use status?

DR: No. So the court did mention that not all emergency use authorizations are equal and that this one was based on a lot of data. But it did so in the context of assessing if the university mandate was reasonable. It didn't directly address the legal question on whether you can mandate the vaccine under an EUA at all, although the fact that it upheld the mandate suggested it thought you did. But it didn't give a direct analysis of that question 

Laws restricting the ability to impose vaccine mandates

JC: Professor, before we let you go, some states have recently passed and others are still considering laws restricting the ability to impose vaccine mandates. Would those types of state laws interfere with colleges’ and universities' abilities to impose vaccine mandates?

DR: As we like to say in law, it depends. It really depends how the law is written. Some of these laws tell government agencies they can't require vaccines to provide services, and in those state,s it will really depend whether university education in the state university is a government agency service. And it varies across states. Some of these laws go further and say that businesses can't require vaccines as a condition of service, and in those states, it will probably cover the universities as well. Indiana is interesting because it doesn't say you can't require vaccines. It says you can't require documentation of vaccines.

JC: So the types of programs where you have to prove vaccination would not be permitted?

DR: Yes, and the attorney general interpreted this to mean that the university can mandate but cannot require documents. So the Indiana University now requires students to sign a statement that they're vaccinated and has to accept that without requiring anything else.

JC: And professor, so far what's the punishment, I suppose, if you're not vaccinated? Are the schools saying get vaccinated or give up your seat at our college?

DR: It depends. So in Indiana University, if you're not vaccinated and did not get an exemption, you are pretty much out. You lose a lot of your privilege, you lose your student ID. It's very close to expulsion. So some of these mandates do have very direct consequences. But, as I said, the University of Indiana does offer exemption, and it looked like it was very generous in giving religious exemption to anyone who asked. Not all universities are as generous. In the workplace, mandates, again, vary. So in Texas Methodist Hospital, which was also subject to litigation, the mandate was vaccinate or we are letting you go.

JC: Professor Dorit Reiss, thank you for your time today.

DR: My pleasure.

JC: And thank you for watching TalksOnLaw.