COVID-19 Vaccination Requirements to Attend Colleges and Universities

The American Civil Liberties Union of West Virginia (ACLU-WV) has received inquiries about the legality of public and private colleges and universities requiring students to provide proof of COVID-19 vaccinations as a condition of returning to campuses in the Fall of 2021.

This guidance sets forth certain issues that we believe courts consider in evaluating such mandates. Particularly given the ever-evolving situation, ACLU-WV presently takes no position on whether courts would or should uphold any challenges to a specific vaccine mandate. We hope this guidance is helpful to those faced with decisions about whether and under what conditions to return to in-person schooling, and to educational institutions as they develop and enforce their policies.

1. COVID-19 presents a real public health risk, including given the recent surge in cases from the Delta variant. This risk justifies schools taking steps to ensure that both students and employees are safe on their campuses. In August 2021, for example, a panel of the U.S. Court of Appeals for the Seventh Circuit declined to enjoin a policy at Indiana University requiring all students to be vaccinated against COVID-19 unless they are exempt for religious or medical reasons. The students in that case then applied for injunctive relief with the U.S. Supreme Court, and Justice Amy Coney Barrett denied that application on Aug. 12.

2. The Pfizer COVID-19 vaccine received full approval from the FDA on Aug. 23, potentially paving the way for more mandates. Now that one of the three vaccines being used widely in the U.S. has received full approval from the FDA, it is possible more institutions will issue mandates to be vaccinated as a condition of returning to public school or a public agency workplace. The other two widely used vaccines in the U.S. – those made by Moderna and Johnson & Johnson – are still approved for emergency use.

3. Public colleges and universities are subject to constitutional requirements that may not apply to private schools. As a result, private schools may have more leeway to apply vaccine mandates. Public schools are subject to due process and equal protection requirements that may not apply in the same way to private schools, although that does not mean that public school mandates are unlawful as shown by the Indiana University case. Moreover, if public colleges and universities impose vaccine mandates on certain members of their community but not others — for example, by treating students differently from employees — that could raise equal protection issues, although it is not clear that policies would be found unlawful on that basis.

4. A regime of mandatory testing, coupled with other strictly enforced, non-pharmaceutical interventions (like masking and distancing), might be more likely to survive a legal challenge than an absolute vaccine mandate. A policy that provides for exemptions from testing for those who are vaccinated, or for the less frequent testing of vaccinated individuals, might be viewed as less onerous than an outright mandate to be vaccinated. However, given what has been learned about the spread of the Delta variant, non-pharmaceutical interventions might be deemed appropriate for vaccinated and unvaccinated individuals alike.

5. Courts might conclude that any vaccine mandate should provide for exemptions for those with disabilities that make vaccination unsafe for the individual or for those with sincerely-held religious reasons for objecting to vaccination. For example, the Indiana University policy that the Seventh Circuit declined to enjoin contained medical and religious exemptions. And the Seventh Circuit itself, while issuing a General Order requiring court employees to be vaccinated against COVID-19, has crafted exemptions from that requirement “for employees with a medical condition that prevents them from being vaccinated or a sincerely held religious objection to vaccination.” Of course, providing for exemptions does not necessarily mean that each exemption request must be granted, as a proper analysis may turn on various factors, including the risk that an unvaccinated individual may pose to others in light of the interactions they are expected to have on campus. Those who are not required to be vaccinated can be required to take other precautions, and those who refuse to do so can likely be subject to prompt disciplinary action.

6. To promote access to educational opportunities, schools should strongly consider providing robust, remote learning opportunities for those who are unable to return to campus because of COVID-19 related policies.

August 2021