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University Vaccine Mandate Lawsuits Mount as FDA Approval Nears

Aug. 20, 2021, 9:36 AM

Covid-19 vaccine mandates for students have triggered a growing body of lawsuits against higher education institutions, testing the bounds of employer responsibility and health law amid the worsening pandemic landscape.

More than 730 college campus locations are requiring vaccines for students or employees returning for the fall semester, according to a database maintained by the Chronicle of Higher Education. At least six challenges to these mandates have been filed in the U.S. this summer, and health policy experts say more are likely to flow in.

“There’s going to be a lot of litigation over this,” said Nicholas M. Pace, a senior social scientist at the RAND Corporation. “We’ve never dealt with this kind of thing before. We never had every state, every city, every employer having these issues.”

The lawsuits call into question the authority universities have over requiring a vaccine that only has emergency use status. With full Food and Drug Administration approval of Pfizer Inc. and BioNTech’s Covid-19 vaccine expected around the corner, health law scholars doubt the challenges will gain much ground. One federal appeals court has already backed inoculation as a condition of university admission.

“A private business is absolutely entitled to set the conditions for a safe workplace. And it doesn’t matter whether it’s under an emergency use authorization or it’s fully licensed,” said Lawrence Gostin, director of the O’Neill Institute for National and Global Health Law at Georgetown University.

And with lawsuits, “we’ll see a lot of them until mandates become the norm. And they are rapidly becoming the norm,” Gostin said. “Every day another shoe drops, there’s another mandate in place.”

‘Re-Litigate the Science’

Rutgers University is the latest higher education institution facing blowback for requiring students to get vaccinated against Covid-19 before returning to campus.

Children’s Health Defense, a Georgia-based nonprofit founded by anti-vaccine advocate Robert Kennedy Jr., and 18 student members filed a complaint Aug. 16 arguing it’s illegal and unconstitutional for Rutgers to force students to take an experimental vaccine that’s only been authorized for emergency use.

“Rutgers is requiring all students to face the unknown risks of emergency-use authorized vaccines that are still under investigation and that it is helping to develop, without regard for the death or injury that these vaccines could cause,” they said in their complaint.

Rutgers didn’t respond to a request for comment.

The FDA is reviewing Covid-19 vaccines and working to issue their full approval. President Joe Biden said recently he expects a decision on the Covid vaccines by September or October.

Full FDA approval could trigger “an avalanche of mandates,” Gostin said, adding that lawsuits could continue to flow in “until it becomes absolutely clear” it’s “a losing game.”

The emergency status argument would likely become moot after a full FDA sign-off, attorneys say. In the case against Rutgers, vaccine licensure would essentially remove the EUA argument, said Dorit Reiss, a professor of law at the University of California Hastings College of the Law.

“The argument is the vaccines are of questionable efficacy and safety, and unknown risk,” she said. “Courts tend not to like to re-litigate the science.”

Even without full FDA approval, basing claims on vaccines’ emergency use status may be a shaky argument. The Justice Department already said in a memo that the emergency status of the Covid-19 vaccines doesn’t prohibit an employer, university, or other entity from requiring vaccinations.

Mounting Suits

Lawsuits have also been filed challenging vaccine mandates at Indiana University, California State University, George Mason University, the University of Massachusetts Lowell, and the University of Connecticut.

A federal district court on Aug. 16 dismissed the case against the University of Connecticut because two of the three students challenging the mandate had received exemptions from the requirement and the third student declined to ask for one.

U.S. District Judge Jeffrey Meyer, however, noted the case raised important constitutional questions like: “Why and when should the government have the right to condition access to public education on a student’s sacrifice of his or her right against unwanted medical treatment in the form of a highly invasive injection of a yet-to-be fully approved vaccine?”

Earlier this month, the U.S. Court of Appeals for the Seventh Circuit refused to block Indiana University’s vaccine mandate. Judge Frank Easterbrook said in the ruling that “each university may decide what is necessary to keep other students safe in a congregate setting.”

The students went to Supreme Court Justice Amy Coney Barrett, but on Aug. 12 she refused without explanation to the block the school’s mandate. The Seventh Circuit ruling is likely to help other schools fend off challenges.

“The fact we already have a court that ruled against this and ruled in strong language will hurt these cases,” Reiss said.

State Bans

While universities may have luck fending off claims in court, laws in some states may pose problems.

A dozen states have active bans on vaccine mandates that apply to institutions of higher education, according to the National Academy for State Health Policy, a nonpartisan policymaker forum.

States “have very broad authority to regulate businesses” within their borders, Gostin said. What’s more, “public universities are run by the state,” he said.

Seven states’ bans apply only to public colleges and universities—Arizona, Montana, Idaho, New Hampshire, Ohio, Tennessee, and Utah. The other five have bans that apply to both public and private universities. Indiana has a law banning vaccine passports, not vaccine requirements. The U.S. District Court for the Northern District of Indiana noted that difference when it declined to block Indiana University’s mandate on July 18. In a footnote, the court said it never reaches whether this anti-passport law applies to a public university.

Meanwhile, some schools are waiting until the Covid-19 vaccines are fully approved before issuing a mandate, said Hemi Tewarson, executive director of NASHP, noting some school officials felt the emergency use status of the vaccine could elicit more litigation.

The students suing Rutgers say they can’t simply attend college elsewhere because most every college in New Jersey, and many colleges across the country now have a vaccine mandate. But Reiss said plenty of schools aren’t requiring vaccines, and that even if they were, people don’t have a general legal right to higher education.

“A lot of people don’t go to the university ever and when you go, you generally go on the university’s terms,” she said.

Legal experts also note that universities have a duty of employee safety and authority over who can utilize their services.

“Universities have complete discretion deciding on who they will admit, what the safety requirements are,” Gostin said. “They always have and probably always will.”

To contact the reporters on this story: Ian Lopez in Washington at ilopez@bloomberglaw.com; Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Alexis Kramer at akramer@bloomberglaw.com

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