Spar with colleges

GOP leaders spar with colleges over vaccine mandates

The red states’ moves potentially set up court fights over who has the power to police campus health just as schools prepare to reopen for in-person instruction.

By BEN LEONARD

Conservative state lawmakers are moving to block public and private universities from requiring returning students to have proof of Covid vaccinations or get the vaccine itself, in a push that could complicate President Joe Biden’s effort to get shots to young adults.

Executive orders or legislation in states like Arizona and Florida ban universities from mandating students show proof of vaccination status and come as the more transmissible Delta variant of the coronavirus is surging. College-age Americans have the lowest vaccination rates and are least likely to make plans to get a shot, according to the Centers for Disease Control and Prevention.

The states’ moves potentially set up a series of court fights over who has the power to police campus health just as schools prepare to reopen for in-person instruction. Already, a group of Indiana University students has sued over the school’s fall vaccine requirement, forcing the state's attorney general to weigh in. The battles could extend to as many as 16 states because some of the bans don’t explicitly single out universities and instead target “governmental entities” that could apply to state colleges.

“It's likely to be broadly interpreted, and I suspect universities will be cautious in these states,” said Dorit Reiss, vaccine law expert at the University of California Hastings College of the Law.

Universities in Democratic-controlled states have adopted vaccine mandates with little controversy. And Biden’s administration is redoubling efforts to persuade younger Americans to seek out the shot as it faces the strong likelihood of missing a goal of providing at least one Covid-19 vaccine dose to 70 percent of adults by July 4.

The resistance to vaccine rules on campus harks back to last fall's fight over mask orders that pitted Biden against 16 Republican governors after his election victory. The governors, whose states were engulfed with new Covid cases, cited a similar rationale in rejecting Biden’s bid to build consensus around mask-wearing and other basic public health strategies.

Arizona has been a flashpoint for the battle over college vaccination requirements. Republican Gov. Doug Ducey last week issued an executive order blocking vaccine mandates on campuses after publicly jousting with Arizona State University over a vaccination plan the school rolled out in mid-June. That plan would have required non-vaccinated students to wear masks on campus and be tested up to twice a week while exempting vaccinated students from such rules.

In the executive order, Ducey directly accused Arizona State of trying to "usurp" his "constitutional authority" and that of the state Legislature. “This is bad policy, with no basis in public health,” Ducey wrote on Twitter.

“The vaccine works, and we encourage Arizonans to take it. But it is a choice and we need to keep it that way,” Ducey said in a statement.

Arizona State plans to soon issue a new policy that's in line with the governor’s order, according to spokesperson Jay Thorne, pulling back the requirements on unvaccinated students to strong recommendations.

Similar situations have played out elsewhere.

Florida Republican Gov. Ron DeSantis in early May signed into law a ban on vaccine mandates at both public and private colleges and universities. That forced Nova Southeastern University in Fort Lauderdale to reverse a vaccine requirement that had only allowed exemptions for medical issues or religious beliefs. Now, the school says that if 80 percent of students report being vaccinated, it will not require masks on campus.

Indiana University's decision last month to require all students, faculty and employees to get vaccinated at all of its campuses drew a swift response from the state’s attorney general Todd Rokita, who said the policy "unquestionably violates" a state law barring vaccine passports that he, in turn, interpreted as barring universities from requiring proof of vaccination.

Just days later, IU announced it would only requiring students to fill out a self-attestation form that they had been vaccinated.

John Hamilton, a Democrat and mayor of Bloomington, Indiana, home to IU’s flagship campus, called the state legislation “regrettable,” saying he expects it will reduce the number of students getting vaccinated "at the margins."

"I don't know the effect, but it won't be positive I don't expect and that's unfortunate," Hamilton said. "There's frustration generally that we can't do better just listening to the science and letting that lead the way.”

The battle over IU’s mandate has continued on, with a anti-vaccine mandate protest at IU-Bloomington. On Monday, several students filed a lawsuit against IU over the mandate, arguing it is “draconian” and violates their constitutional rights.

The university mandates have given anti-vaccine advocates a new issue to rally behind by focusing on the fact that the Covid-19 vaccines have only received emergency use authorizations.

“We'd completely agree with the states that say, you can't coerce somebody to do something that is not yet approved or licensed,” said Mary Holland, general counsel and president of anti-vaccine group Children's Health Defense, founded by Robert F. Kennedy, Jr. “It's premature.”

Rekha Lakshmanan, director of advocacy and policy at the Immunization Partnership, said she understands that some may have concerns but pushed against the wave of legislation banning vaccine mandates, saying they are a “gateway” to vaccine misinformation.

“To respond to almost like a boogie man and start legislating so early on, I think is a little bit short-sighted,” Lakshmanan said.

Anti-vaccine sentiment has crept into Republican politics in recent years, say experts who have written extensively on the anti-vaccine movement.

Peter Hotez, dean of the National School of Tropical Medicine at the Baylor College of Medicine, traces the roots to around 2015, when California lawmakers limited vaccine exemptions for children in light of a measles outbreak.

Since then, a "health freedom" movement tied to the Tea Party movement has taken off, said Hotez, characterized by anti-vaccine groups aggressively lobbying conservative state lawmakers via political action committees, notably in Texas.

“They're causing a lot of damage,” Hotez said. “The GOP has now fully embraced anti-vaccine, anti-science activities.”

The legislation introduced in state houses this year varies from explicit bans on higher education institutions requiring vaccines to prohibitions on government entities from requiring vaccines, potentially including colleges. The restrictions also vary in whether they apply to just public institutions or private universities.

As of Wednesday, seven of the states with bans are among the bottom 10 when measured for percentage of fully vaccinated residents, according to data from the Mayo Clinic. Only two — Iowa and South Dakota — were in the top half of states for fully vaccinated residents.

The American College Health Association has called for colleges and universities to have Covid-19 vaccine requirements this fall, with their normal exemptions including for preexisting medical conditions. Most colleges have already long required other vaccines for students, so this call for a vaccine requirement isn’t unusual, said Gerri Taylor, a co-chair of the association’s Covid-19 task force.

“In order for college students to return to the kind of pre-pandemic environment on college campuses, that the college area has to be safe, and we feel the best way for it to be safe, from a health standpoint, is to require this vaccine,” Taylor said.

Though younger adults are much less likely to die from the virus, they still can have severe Covid-19 infections and spread the virus. Experts say the risk of consequences from getting the vaccine for college aged adults is much lower than from not getting the vaccine.

College students not getting vaccinated is like a game of Russian roulette, said Paul Offit, director of the Vaccine Education Center at Children’s Hospital of Philadelphia and a member of FDA's vaccine advisory panel.

“It's not five empty chambers and one bullet. It's probably 100,000 empty chambers and one bullet,” Offit said. “But why put a gun to your head?

Universities may attempt to challenge these state laws.

Mark Tushnet, a law professor emeritus at Harvard Law School, argues that the bans on vaccine mandates have become a symbol of support for former President Donald Trump, who in 2020 won 14 of the 16 states with bans. Tushnet and other legal experts concluded that state bans on vaccine mandates generally are constitutional, but Tushnet said they are likely to be challenged by many universities.

Peter McDonough, general counsel for the American Council on Education, a major higher education lobbying group, says lawmakers should be asking themselves if immunization mandate bans are inhibiting vaccination efforts. McDonough is concerned about some of the mental health impacts of a potentially less vaccinated student body on campus.

“One of the things I never hear when I am attending to the fact that there's pushback against vaccine requirements is any concern about mental health implications of a less vaccinated population,” McDonough said. “Nobody's been doing really that great in this remote world, right? We need to get people back together.”