As the highly transmissible delta variant of COVID-19 spreads across the country, many businesses are again tightening safety precautions to help curb the spread of the disease, like reinstating mask mandates or requiring that employees be vaccinated. Many colleges and universities, still hoping that students can return to in-person schooling in the fall, are also requiring that students be vaccinated. But if a school receives funding from the government, can they still enact a vaccine mandate?
The First Amendment vs. Vaccine Mandates
Constitutional checks keep governments from requiring government employees, particularly at the federal level, to be vaccinated, although President Biden has begun to tighten regulations for unvaccinated individuals. Private employers can, however, legally require their employees or patrons to be vaccinated.
This raises questions about universities, which often receive some form of federal funding, and whether they are obligated to comply with some federal regulations. There are questions, for instance, about the different requirements that public versus private universities can institute for their students and faculty, particularly when it comes to First Amendment and Bill of Rights freedoms like free speech or bodily autonomy.
Public and Private Schools
Private universities often receive tax breaks or other benefits from the government but are not typically given funding directly by the state or federal government. Public colleges, on the other hand, rely on government funding rather than an endowment fund paid by tuition and alumni donations.
More than 400 colleges and universities so far are requiring that students receive an approved COVID-19 vaccine to return to campus for the fall term. Private institutions, like any private business, can enact such mandates because enrollment as a student is an individual choice, and not subject to the same First Amendment restrictions as government employers. Some schools, however, are offering exceptions for students who cannot receive the vaccine for medical, religious, or other reasons.
Public colleges in some states, meanwhile, are unable to completely require that students be vaccinated. This is partially thanks to their status as government-funded institutions and partially because for months lawmakers in more conservative states have been working to pass legislation that will make vaccine mandates illegal.
These schools, however, can use loopholes to ensure that their students are still protected from the virus. These can include mask requirements, mandatory testing, social distancing rules, and more — all of which can be legally done, because they are offering alternatives to individuals who don’t want to be vaccinated, rather than excluding them from participation on campus entirely.