Private colleges and universities are planning for students to return to campus in the fall. Of the myriad of considerations that will need to be decided, one is whether to require students to be fully vaccinated against COVID-19. Recently, the American College Health Association (ACHA) announced its recommendation that colleges and universities require the COVID-19 vaccination for all on-campus students where state law and available resources allow and subject to the college and universities’ typical vaccination exemption policies. According to a list maintained by the Chronicles of Higher Education, a number of public and private colleges and universities throughout the country — such as Rutgers, Cornell, Duke, Brown, Notre Dame, Yale, Princeton, and Northeastern University — have announced their intention to require students to be fully vaccinated against COVID-19. Of particular interest to colleges and universities in California, the University of California (UC System) and California State University (CSU System) systems also announced their intention to require all students and employees accessing university facilities and programs to receive the COVID-19 vaccine, subject to religious exceptions and medical exemptions, once the Food and Drug Administration (FDA) has fully approved at least one vaccine and the fully approved vaccine is widely available.
Unlike in the employment context, there is currently no state or federal guidance on whether private colleges and universities can require their students to receive the COVID-19 vaccine. What follows are some key points and considerations for private colleges and universities regarding this issue based on applicable authority and case law.
Case Law May Support a Private College or University’s Authority to Require the COVID-19 Vaccines for Students
There is no case law regarding the ability of private colleges and universities to require their students to receive a vaccination as a condition of in-person attendance. However, there is long history of case law addressing the permissibility of mandatory vaccinations imposed by public entities. For example, in 1890, the California Supreme Court in Abeel v. Clark[1] upheld a vaccination act that required schools to exclude any child who had not been vaccinated against smallpox. Further, in 1905, the United States Supreme Court in Jacobsen v. Commonwealth of Massachusetts[2], upheld a state’s statute requiring mandatory smallpox vaccinations for all adults as a lawful exercise of the state’s police power to protect public health and safety. Several years later, the United States Supreme Court in Zucht v. King[3] similarly upheld a city ordinance requiring that all students receive a smallpox vaccination in order to attend public or private school.
Subsequent federal and state cases arising out of California have continued to follow Jacobsen v. Commonwealth of Massachusetts to uphold compulsory vaccination mandates imposed by public entities. This includes state and federal cases upholding California Senate Bill No. 277, which eliminated nonmedical exemptions from the requirement that children receive vaccines for specified infectious diseases before being admitted to any public or private elementary or secondary school or childcare facility in California.[4]
On December 4, 2020, the California Superior Court issued a significant decision, Kiel v. The Regents of the University of California, which supports a public university’s ability to require students to receive a vaccine as a condition of entering a university’s physical campus during the COVID-19 public health emergency. In Kiel, three employees and two students (Plaintiffs) of the UC System asked the court for an order prohibiting the UC System from enforcing a requirement that all students, faculty, and staff receive a flu vaccine as a condition of accessing a UC System campus. The mandate allowed for medical exemptions, disability accommodations, and religious accommodations.
The court denied the Plaintiffs’ request. The court explained that the vaccination mandate was narrowly tailored to achieve the UC System’s interest in protecting health and safety by preventing the spread of the flu during the COVID-19 pandemic. Specifically, the mandate only applied to those who accessed UC System property for work or study, allowed for medical exemptions and disability and religious accommodations, and was limited to the 2020-21 flu season only. The court also found that the harm to the Plaintiffs of having to abide by the mandate and possibly work or study remotely were outweighed by the harm of contracting and transmitting the flu during the COVID-19 pandemic to those on campus and in the surrounding community if the flu vaccine mandate was not in place.
Kiel and its predecessors involved vaccine mandates imposed by public entities and largely turned on the authority public entities have to regulate behavior in order to promote health and safety. While private colleges and universities do not have this type of authority because they are not state actors, private colleges and universities are not legally obligated to afford their students most of the traditional constitutional protections that public colleges and universities are required to provide. Accordingly, they have fewer constitutional restrictions constraining their actions. In this regard, private colleges and universities may have greater latitude to impose terms and conditions, such as vaccination requirements, on students’ enrollment than public colleges and universities.
Private colleges and universities that rely upon the Kiel case and its predecessors to impose a mandatory COVID-19 vaccine for their students should narrowly apply the requirement, such as to only those students who intend to access the institution’s physical campus, should provide some distance learning options for students, and should allow for appropriate exemptions and accommodations based on applicable state and federal law.
Emergency Use Authorization
At this time, all COVID-19 vaccines currently available are approved by the FDA under emergency use authorization (EUA), and the above cases do not address vaccines approved under EUA.[5] It is therefore unclear whether the fact that these vaccines are approved under EUA would impact an institution’s ability to require students to be fully vaccinated before attending classes on campus.
As noted above, the UC System and the CSU System recently announced their intention to require all students and employees accessing university facilities and programs to receive the COVID-19 vaccine, subject to religious exceptions and medical exemptions. However, this requirement will not take effect until the FDA has fully approved at least one vaccine and the fully approved vaccine is widely available. Therefore, the vaccination requirement imposed by the UC System and the CSU System will not require students or employees to receive a COVID-19 vaccine authorized under EUA. Interestingly, the CSU System had previously indicated that it would not require all students and staff to be fully vaccinated against COVID-19 as a condition of enrollment or employment, respectively, upon advice from CSU’s general counsel that it could not do so because the current COVID-19 vaccines are authorized under EUA.
A currently pending lawsuit brought by California Educators for Medical Freedom (CEMF), a “voluntary, unincorporated association of [Los Angeles Unified School District (LAUSD)] employees whose purpose is to advocate for medical choice and bodily autonomy on behalf of its members,” has challenged a requirement imposed by LAUSD that all employees of LAUSD be vaccinated against COVID-19. CEMF alleges that LAUSD is unable to require that employees be vaccinated against COVID-19 due to the EUA status of the current COVID-19 vaccines. Essentially, CEMF asserts that LAUSD, as a government agency, is prohibited from requiring non-consensual administration of currently available COVID-19 vaccines given an individuals’ right, under the FDA statute, to decline emergency use vaccines. CEMF further describes a COVID-19 vaccine approved under EUA as “experimental” and equates LAUSD’s requirement that employees receive a COVID-19 vaccine approved under EUA as non-consensual human medical experimentation inconsistent with international, federal, and California law and regulations.
While CEMF’s lawsuit involves a public agency imposing a COVID-19 vaccine requirement on employees, the result of this lawsuit with regard to the EUA issue may be informative for private colleges and universities nevertheless.
If a student refuses to be vaccinated against COVID-19 because the only available vaccines are approved under EUA, it is uncertain whether private colleges and universities have a duty to exempt these students from the COVID-19 vaccine requirement. Given the uncertainty surrounding the EUA issue, private colleges and universities may want to consider postponing the implementation of mandatory COVID-19 vaccination policies until a COVID-19 vaccine has received general approval from the FDA and that vaccine is widely available.
Private colleges and universities that wish to impose a COVID-19 mandate before a vaccine has received general approval from the FDA instead of only EUA approval, may want to consider discussing alternative options with students who refuse to obtain the COVID-19 vaccine, such as requiring these students to obtain regular COVID-19 testing as a condition of attending classes, and other measures, such as enhanced personal protective equipment and remote learning options. Private colleges and universities may also want to provide students who express concerns about the COVID-19 vaccine with information on the safety and efficacy of the vaccine from reputable sources, such as the Centers for Disease Control and Prevention (CDC).
Colleges and Universities Should Provide Disability Accommodations and Medical Exemptions for Students
Private colleges and universities that choose to require the COVID-19 vaccine for students should provide disability accommodations consistent with Title III of the Americans with Disabilities Act (ADA) requirements. Title III of the ADA applies to places of public accommodation and prohibits discrimination against certain individuals, such as current students and student applicants based on disability with regard to the full and equal enjoyment of the goods, services, facilities, or accommodations. Generally, places of public accommodation must make reasonable modifications unless doing so would pose a direct threat to the health and safety of others. Notably, the Equal Employment Opportunity Commission, which enforces the ADA in the employment context, has concluded that COVID-19 presents a significant risk of substantial harm to the health and safety of the workplace and that COVID-19 satisfies the direct threat standard under the ADA.[6] While the EEOC does not enforce Title III of the ADA, the same rationale may apply with regard to students in the private college and university context. Nevertheless, possible accommodations for students should be considered on a case-by-case basis, but could include distance learning, enhanced personal protective equipment, or required participation in regular COVID-19 surveillance testing.
Further, it is advisable to provide medical exemptions to students who have a medical condition or contraindication that prevents them from receiving the COVID-19 vaccine, with documentation from a medical provider. The documentation should only ask the medical provider to validate the existence of a medical condition or contraindication that prevents the student from receiving the COVID-19 vaccine: it should not ask for the name or type of the medical condition or contraindication nor any other specific medical information to avoid implicating the student’s privacy rights or applicable state or federal laws prohibiting such medical inquiries.
Religious Accommodations for Students who Refuse the COVID-19 Vaccine
Finally, private colleges and universities that require the COVID-19 vaccine are required to provide religious accommodations to their employees under Title VII of the Civil Rights Act of 1964 and the Fair Employment and Housing Act (FEHA). However, there is no federal law that requires a private college or university to provide religious accommodations to their students. At the state level, California’s Unruh Civil Rights Act (Unruh)[7] outlaws discrimination in places of public accommodation based on religion, among other protected classifications. Notably, the Unruh Act does not apply to religious schools with regard to their admissions decisions.
There is no case law addressing whether Unruh requires a place of public accommodation to provide members of the public with religious accommodations with regard to general policies that apply neutrally to all people. Nevertheless, if a student requests an accommodation to a COVID-19 vaccine requirement for religious reasons and a university or college declines to provide one or if a student is prohibited from participating in programming or activities provided by a college or university due to being unvaccinated for religious reasons, it is possible that the student may bring a claim under Unruh for religious discrimination.
Because there is a potential risk of an Unruh Act claim, private colleges and universities that decide to mandate the COVID-19 vaccine for students may want to provide accommodations for those students who refuse to the COVID-19 vaccine based on their religious beliefs. There are other reasons why private colleges and universities may want to provide religious accommodations for students as well, including to act consistently with their mission and purpose and to act with respect and demonstrate value of students’ religious beliefs. Further, private and colleges and universities that elect not to provide religious accommodations may risk negative public perception and public relations issues related to that choice. Notably, many of the private colleges and universities that have announced they are requiring students to obtain the COVID-19 vaccine have also stated that they will provide religious accommodations for students as well.
Possible accommodations for students who refuse the COVID-19 vaccine due to their religious beliefs may include remote/distance learning options, required participation in regular COVID-19 surveillance testing, or enhanced personal protective equipment options, as the institution deems appropriate under the circumstances.
Colleges and Universities Have a Duty to Protect Students and Provide a Safe Working Environment for Employees
California colleges and universities have a duty to protect students from foreseeable harm while they are “engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services.”[8] This duty to protect students from foreseeable harm is a potential justification for requiring students on campus to be vaccinated against COVID-19.
Further, the federal Occupational Safety and Health Act (OSHA) and the California Occupational Safety and Health Act (Cal/OSHA) require colleges and universities to provide a healthy and safe workplace for their employees.[9] Colleges and universities may be able to justify a requirement that students receive a COVID-19 vaccine as a condition of entering the campus as a measure to mitigate the spread of COVID-19 to maintain a healthy and safe workplace for their employees. Notably, however, Cal/OSHA’s current COVID-19 prevention and mitigation standards do not require that employees or others who access the workplace be fully vaccinated against COVID-19.
Potential Risks and Consequences of Requiring the COVID-19 Vaccine
Private colleges and universities should be aware that mandating the COVID-19 vaccine for students as a condition of entering the campus may lead to litigation against the institution from students or others who oppose the requirement for any number of reasons, including religious reasons, anti-vaccination beliefs, or other personal reasons. Defending against a lawsuit can be time-consuming and costly regardless of whether it is meritorious.
Private colleges and universities should also be aware that mandating the COVID-19 vaccine may be perceived by the student community in a negative way. Some students may perceive the requirement as a way to control their behavior or remove their agency.
Moreover, mandating the COVID-19 vaccine for students carries the risk of negative public perception or public relations issues. Some individuals or groups may have negative feelings about the COVID-19 vaccine specifically or medical procedures or the healthcare system in general, and may be vocal about their opposition to a COVID-19 mandate.
Further, there are some practical issues as well. For example, international students returning to campus may not have had the opportunity to receive an FDA approved vaccine in their home country before returning to campus. Similarly, economically disadvantaged students may have a harder time becoming fully vaccinated before returning to campus as well. For these reasons, private colleges and universities may want to provide vaccination resources for students who have been unable to become fully vaccinated before returning to campus with possible additional precautionary measures in place in the interim.
Conclusion
If private colleges and universities decide to require the COVID-19 vaccine for their students, they should:
This is an evolving area, and LCW will update clients if there is further guidance or case law regarding the ability of colleges and universities to require the COVID-19 vaccine for students.
[1] Abeel v. Clark (1890) 84 Cal. 226.
[2] Jacobson v. Commonwealth of Massachusetts (1905) 197 U.S. 11.
[3] Zucht v. King (1922) 260 U.S. 174.
[4] Whitlow v. California (S.D. Cal. 2016) 203 F.Supp.3d 1079; Love v. State Dept. of Education (2018) 29 Cal.App.5th 980; Brown v. Smith (2018) 24 Cal.App.5th 1135, 1138.
[5] When a recipient receives a COVID-19 vaccine approved under EUA from a medical pro-vider, the recipient is informed that the FDA approved the vaccine for emergency use, the known and potential benefits and risks of the vaccine, the extent to which such benefits and risks are unknown, their option to accept or refuse the vaccine, and any available al-ternatives to the product.
[6] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.)(providing that “[b]ased on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard.”); See also 29 C.F.R. § 1630.2 subd. (r).
[7] To state a violation of Unruh based on religious discrimination, persons must allege the following: (1) they were denied full and equal privileges to, or otherwise discriminated against by, a business; (2) a motivating reason for the denial or discrimination was the business’ perception of protected status (i.e., intentional discrimination); (3) they were harmed; and (4) the business’ conduct was a substantial factor in causing the harm. (Civ. Code, § 51; Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661; Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142; Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 27.)
[8] Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 624–626.
[9] Labor Code § 6300, et seq.