College and university students preparing for the start of the new academic year are confronting a harsh new reality: Covid-19 has made post-secondary schools in the U.S. a potent symbol of the Divided States of America.
There are over 4,000 degree-granting institutions of higher education in the U.S., and only 817 of them (as of Aug. 30) are mandating the Covid-19 vaccination. At 341 schools, faculty and staff are exempt from the vaccine mandate. The number of institutions requiring vaccination has been steadily increasing since the spring, but far too slowly. When the fall semester begins, a significant majority of post-secondary institutions will resume campus life without a Covid-19 vaccination requirement.
That is bad news, but there is worse. The divisiveness of the November 2020 presidential election has turned a basic issue of public health into a heated ideological battle that reflects the pantone-coded map of partisan politics.
Public Health Is Now Political
In the 25 states where Donald Trump won the popular vote, only 135 post-secondary schools have a Covid-19 vaccine mandate, and 93 of those schools are in four states (Ohio, Indiana, Louisiana, North Carolina). Almost a dozen states—Alaska, Montana, Idaho, Wyoming, North Dakota, South Dakota, Alabama, Kansas, Oklahoma, Arkansas, Mississippi—are devoid of colleges or universities that require the Covid-19 vaccine of students, faculty, or staff.
In contrast, every state that voted for Joe Biden is home to multiple schools that mandate the Covid-19 vaccine.
Students in blue states (where voters vote mainly Democrat) and red states (where voters vote mainly Republican) should not be housed on campuses with starkly different risk profiles, but that is how the 2021-22 academic year is shaping up. The reason is not scientific uncertainty; Covid-19 vaccines are remarkably effective at reducing serious illness and death, and vaccinating everyone on campus—faculty, staff, and students—is the most effective way of protecting the health of the academic community.
Unfortunately, science is taking a back seat to politics in statehouses across the country. State-based emergency public health powers are meant to enable elected leaders to pursue productive public health policies. Instead, too many red state governors and legislatures have issued executive orders and passed laws banning vaccine (and even mask) mandates.
In Florida, Texas, Tennessee, and seven other states, no public post-secondary schools have mandated the vaccine because they have been knee-capped by their so-called representatives, threatened with fines and more if they require the vaccine.
Vaccine Litigation Suits Grow
Baseless litigation has worsened the blow. Louisiana’s attorney general is suing a medical school that denied several student applications for a religious exemption; a law professor at George Mason University in Virginia claimed that his school’s mandate was an affront to his autonomy and constitutional rights; a nursing student in Tennessee is suing because she was told she had to be vaccinated.
Most recently, Rutgers University, the first school to announce a Covid-19 vaccine mandate, was slapped with a 100-page lawsuit by Children’s Health Defense, a group chaired by the notorious anti-vaccine activist Robert Kennedy Jr.
The suit was filed on Aug. 16, just one week before the FDA granted full approval to the Pfizer vaccine, which gutted the plaintiff’s main argument that Rutgers could not mandate a vaccine approved for emergency use. The remaining claims, blatantly misusing the slogan “my body, my choice,” have scant legal support, but continue to fan the ideological flames that are torching the coming academic year.
Fortunately, jurists from across the political spectrum have been thoughtfully rejecting legal challenges to vaccine mandates. Indiana University’s mandate was the first to be adjudicated, and the plaintiffs were rebuffed by a Trump-appointed judge in district court, summarily dispatched by a Reagan-appointed appellate judge, and denied a hearing by Amy Comey Barrett, a Trump-appointed justice of the U.S. Supreme Court.
In what is likely to presage opinions in future legal challenges to vaccine mandates, Judge Frank Easterbrook of the Seventh Circuit Court of Appeals made clear that universities “may decide what is necessary to keep other students safe in a congregate setting” because they “will have trouble operating when each student fears that everyone else may be spreading disease.”
In a recent opinion dismissing a challenge to the University of Connecticut’s vaccine policy, U.S. District Court for the District of Connecticut Judge Jeffrey Meyer, an Obama appointee, noted that vaccine mandates “raise important constitutional questions.” Although the lawsuits challenging campus-based vaccine mandates have been uniformly weak, the broader issues they raise—like how we should balance the rights of individuals with the well-being of the broader community—are, as Meyer indicates, of critical importance.
That question, and many others, should be vigorously debated on college campuses in red states and blue states, by students and faculty, in an environment shaped by thoughtful public health policy, not partisan political posturing. Only then will we merit the moniker of the United States of America.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Eric A. Feldman is the Heimbold Chair in International Law, professor of law, professor of medical ethics and health policy, and deputy dean for international programs at the University of Pennsylvania Carey Law School.