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Universities Face Student Lawsuits Over Covid-19 Vaccine Mandate
More than a dozen university students have brought federal lawsuits challenging the vaccination requirements at major public university systems in Indiana, Connecticut, California and Massachusetts.
www.wsj.com
Hundreds of thousands of college and graduate students at public universities have been given a choice: Get fully vaccinated against Covid-19 or don’t show up to campus in the fall.
More than a dozen students have opted for a third option: Sue their school.
Students have brought federal lawsuits challenging the vaccination requirements at major public university systems in Indiana, Connecticut, California and Massachusetts. The students, in several cases backed by antivaccine groups, are insisting they have a constitutional right to go to college in person and unvaccinated.
The odds against the lawsuits are considerable, public-health law scholars say. Already a federal appeals court has affirmed Indiana University’s vaccine requirement, a decision cited by other school defendants. When balancing public-health interests against individual liberties, courts historically have given state entities much deference.
Still, the antivaccine legal effort represents one of the most significant tests in recent years of the government’s power to press adults to get vaccinated, legal scholars said.
The battle over campus policies has become a flashpoint amid a resurgence of Covid-19 cases in the U.S. and contentious debate about how to lift the national vaccination rate. The threat of viral variants has led growing numbers of private employers to compel their workers to be vaccinated. New York City’s mayor said it would soon require indoor diners and gym customers to show proof of vaccination.
In the public sector, California and New York City officials are now requiring their workers to either be vaccinated or be tested regularly. The public university policies are more stringent for those students who don’t qualify for exceptions.
More than 200 public campuses require their students or employees to be vaccinated, according to a Chronicle of Higher Education database, which shows those schools clustered in regions that lean Democratic.
The university systems facing lawsuits—which also include the University of Connecticut, California State University and the University of Massachusetts—have varying rules and exceptions. Generally, students can get waivers for medical reasons or because of religious objections, but they are subject to more stringent safety measures, including indoor mask-wearing and regular Covid-19 testing. Unexempted students have been barred from attending classes in person or from campus entirely. Most of the universities being sued don’t currently allow full-time degree-seeking students to fulfill all their requirements online.
The lead plaintiff suing the University of Connecticut, Nicole Wade, a 28-year-old college student and orthopedic specialist in the Army Reserve, said she was fearful of adverse reactions to the rapidly developed new vaccines.
“I was always hesitant. It’s just so new,” said Ms. Wade, a mother of two children. “There’s no long-term data, so I just feel more comfortable waiting.” She said it was unfair that faculty and staff are exempted from the requirement.
In a court filing, the school said its measures to encourage vaccination are “one tool among many that UConn has put in place to protect the health and safety of returning students.”
Under the UConn policy, unvaccinated students may not attend on-campus activity in the fall unless granted waivers. The university said that as of July 23, it had granted most of the nonmedical requests for waivers, including ones submitted by two other plaintiffs in the case. Ms. Wade hasn’t sought an exemption because of a “lack of clarity about the policy itself,” said her attorney, Ryan McLane. While the university said it was offering remote courses as an alternative, virtual classes are no substitute for in-person education, he said.
The lawsuits against the universities claim violations of the right to bodily autonomy and assert that the safety risks of vaccination outweigh the public-health benefits. Antivaccine activists have focused on the public institutions, which are bound by constitutional restraints, and have brought lawsuits under the 14th Amendment and its protection of fundamental rights and liberties.
Most plaintiffs are students but not all. A 55-year-old George Mason University law professor is suing his school over its policy of denying merit pay increases to unvaccinated faculty members.
Judicial challenges to governmental vaccination policies have a long history. Just a few years after English physician Edward Jenner discovered the smallpox vaccine in the late 1700s, a Vermont resident went to court in protest of a tax his town levied to help pay to inoculate its residents. By the turn of the 20th century, state courts had upheld compulsory vaccination in public schools.
But it was Jacobson v. Massachusetts, a 1905 U.S. Supreme Court case, that set the most influential precedent.
The dispute centered on a Massachusetts law enacted after a major smallpox outbreak authorizing local health boards to require adults to get vaccinated or pay a $5 fine. A Swedish Lutheran pastor named Henning Jacobson from Cambridge was jailed after he refused to get the shot or pay the fine. He argued that the smallpox threat had receded, but the Supreme Court upheld the law in a ruling that gave states broad license to combat health threats.
The lawsuits against the universities add new wrinkles. “We haven’t had to confront adult mandates very often,” said Dorit Reiss, a public-health legal scholar at the University of California, Hastings College of the Law. Just how much judicial scrutiny should be applied to vaccination requirements isn’t fully settled, she said.
While higher courts have suggested that people have a constitutional right to refuse lifesaving medical treatment, such freedom has never extended to the right to refuse inoculation.
Judicial hesitancy to second-guess university administrators was underscored in the Indiana University case. Guided by the Jacobson decision, a federal judge last month allowed the university system to impose its requirement, saying he wasn’t persuaded by the student concerns over vaccine safety.
The Chicago-based Seventh U.S. Circuit Court of Appeals affirmed that decision Monday.
“Few people want to return to remote education,” wrote Circuit Judge Frank Easterbrook, a President Ronald Reagan appointee, denying an injunction. “[W]e do not think that the Constitution forces the distance-learning approach on a university that believes vaccination…will make in-person operations safe enough.”
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