COVID-19 Vaccination Mandates: Can States and Public Universities Require People to Get Vaccinated?

As the global COVID-19 pandemic continues to perpetually linger, public and private entities in the United States are giving more consideration towards the prospect of COVID-19 vaccination mandates.[1] In fact, some government entities have already mandated vaccines for their employees. On Monday, July 26, 2021, California became the first state, New York City became the first major American city, and the Department of Veterans Affairs became the first federal agency to announce mandatory vaccinations for their employees.[2] Only one day later, on Tuesday, July 27, 2021, news broke that the Biden presidential administration would soon announce that all federal employees and federal government contractors will be subject to a vaccination mandate.[3] Many institutions of higher education in the United States have also implemented mandatory vaccination requirements for their faculty, staff, or students. To date, more than 600 American colleges and universities have implemented some form of COVID-19 vaccination mandate.[4]

This Law School’s very own university, The University of Illinois at Chicago (“UIC”), has applied a COVID-19 vaccination mandate to all students.[5] UIC students have several options similar to those at other colleges and universities: 1) become fully vaccinated (status conferred at fourteen days following receipt of the final scheduled vaccine dose) prior to the start of the 2021 fall semester and disclose vaccination status with the university to be exempt from additional mitigation requirements; 2) apply for a medical or religious exemption from the vaccination requirement, and, if granted, be subject to additional mitigation requirements, including wearing a facemask and practicing social-distancing, and submit to weekly saliva testing and health screening; or 3) if a student is neither fully vaccinated nor been granted an approved vaccination exemption by the university, the student is advised not to come to campus.[6] Students who are partially vaccinated by the start of the 2021 fall semester may participate in on-campus activities only if they have already scheduled their final vaccine dose and “vaccination completion is imminent[.]”[7] However, partially vaccinated students must submit to weekly saliva testing and health screening and observe COVID-19 mitigation requirements until the vaccination course is complete.[8] Students who are unable to return to campus have the option to take online courses instead.[9]

Now that various governments and state actors, including public universities like UIC, are enforcing vaccination mandates against their employees and students, the question of the legality of such COVID-19 vaccination requirements has become highly relevant. It is virtually certain that as more public entities continue to apply vaccination mandates during the still ongoing pandemic, and potentially even following the elusive conclusion of the pandemic, legal challenges will arise in response to the mandates. Authoritative guidance regarding the legality of COVID-19 vaccination mandates is starting to develop, however. On July 18, 2021, the Northern District of Indiana upheld a COVID-19 vaccination mandate from Indiana University (“IU”).[10]

In Klaassen, eight IU students sought a preliminary injunction in federal court to prevent the university from enforcing the vaccination mandate.[11] The students claimed that the university’s vaccination mandate infringed upon their Fourteenth Amendment liberty interest of “refusing unwanted medical treatment based on bodily autonomy.”[12] The district court primarily considered the question of: “whether [IU] has acted constitutionally in mandating the COVID-19 vaccine for its students[.]”[13] Prior to undertaking its constitutional analysis, the court took note of the individual liberty interests at stake as well as the global significance and toll of the COVID-19 pandemic.[14] Ultimately, to conclude that IU’s COVID-19 vaccination mandate is indeed constitutional, the court relied on precedent from a United States Supreme Court case dating back to 1905 – Jacobson v. Commonwealth of Massachusetts.[15] In Jacobson, the Supreme Court upheld a Massachusetts law requiring a smallpox vaccination for Massachusetts citizens.[16] The Supreme Court opined that “the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”[17] Further, as noted in the Klaassen opinion, the Supreme Court in Jacobson held that “[the Supreme Court] has distinctly recognized the authority of a State to enact quarantine laws and ‘health laws of every description[.]’”[18] Finally, the judiciary “should only intervene ‘if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’”[19]

Relying primarily on the “no real or substantial relation to those objects”[20] language from the Jacobson opinion, the court in Klaassen determined that rational basis review properly applies to vaccine mandates enacted by the state government or extensions of the state government, including public universities, during a public health crisis.[21] Applying the highly deferential standard of rational basis review to IU’s COVID-19 vaccination mandate, the district court affirmed the constitutionality of the mandate and denied the plaintiffs’ request for a preliminary injunction.[22] The Klaassen court concluded that “the Fourteenth Amendment permits [IU] to pursue a reasonable and due process of vaccination in the legitimate interest of public health for its students, faculty, and staff.”[23]

The holding from Klaassen[24] has paramount contemporary significance given the ongoing status of the COVID-19 pandemic and the high volume of government[25] and higher education institutions (public and private)[26] that are currently implementing or planning to implement a vaccine mandate. Klaassen will likely be highly influential in the decision-making processes of state actors or university officials who are considering their vaccination mandate options because Klaassen is one of the first cases to address the constitutionality of COVID-19 vaccine mandates.[27] Many federal courts around the United States, if confronted with similar cases, would likely hold similarly to Klaassen[28] and uphold the legal validity of COVID-19 vaccination mandates, particularly due to the authoritative and still-binding Supreme Court precedent furnished by Jacobson.[29] Any hesitant government or public university officials may feel emboldened to enact vaccination mandates now that federal precedent exists affirming the constitutionality of such requirements.[30] Conversely, potential opponents of vaccine mandates may be discouraged from pursuing legal challenges due to Klaassen’s existence. Perhaps the question will someday be heard by the Supreme Court. But until that actually happens, the current state of federal law is favorable for state governments and any extensions thereof, including public universities, to enforce COVID-19 vaccination requirements upon their employees or students.

[1] See Phil Mattingly & Jason Hoffman, Biden will announce vaccination requirement across federal government on Thursday, CNN (July 27, 2021, 6:12 PM ET), https://www.cnn.com/2021/07/27/politics/vaccine-mandate-for-federal-employees-under-consideration/index.html.

[2] Jimmy Vielkind, Christine Mai-Duc, & Talal Ansari, Covid-19 Vaccine Mandates Imposed on Some Government Workers, Wall St. J., July 26, 2021, https://www.wsj.com/articles/new-york-to-require-citys-workers-get-covid-19-vaccine-or-be-tested-weekly-11627306868.

[3] Mattingly & Hoffman, supra note 1.

[4] Klaassen v. Trs. of Ind. Univ., No. 21-CV-238, 2021 U.S. Dist. LEXIS 133300, at *12 (N.D. Ind. July 18, 2021) (citing Andy Thomason & Brian O’Leary, Here’s a List of Colleges That Will Require Students or Employees to Be Vaccinated Against Covid-19, Chron. Higher Educ. (July 28, 2021), https://www.chronicle.com/blogs/live-coronavirus-updates/heres-a-list-of-colleges-that-will-require-students-to-be-vaccinated-against-covid-19?cid2=gen_login_refresh).

[5] Michael D. Amiridis, Robert Barish & Susan Bleasdale, UIC student vaccination guidelines for fall, Univ. Ill. Chi. (June 21, 2021), https://today.uic.edu/uic-student-vaccination-guidelines-for-fall.

[6] Karen Colley, Robert Barish & Rex Tolliver, Student COVID-19 vaccination requirements and deadlines, Univ. Ill. Chi. (July 28, 2021), https://today.uic.edu/student-covid-19-vaccination-requirements-and-deadlines.

[7] Id.

[8] Id.

[9] Id.

[10] Klaassen, 2021 U.S. Dist. LEXIS 133300, at *124-25.

[11] Id. at *2-3.

[12] Id. at *1.

[13] Id. at *2.

[14] See id. at *1-35.

[15] Id. at *43 (citing to Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905)).

[16] Jacobson, 197 U.S. at 39.

[17] Id. at 25.

[18] Klaassen, 2021 U.S. Dist. LEXIS 133300, at *46 (quoting Jacobson, 197 U.S. at 25).

[19] Klaassen, 2021 U.S. Dist. LEXIS 133300, at *46 (quoting Jacobson, 197 U.S. at 31).

[20] Jacobson, 197 U.S. at 31.

[21] Klaassen, 2021 U.S. Dist. LEXIS 133300, at *54.

[22] Id. at *124-25.

[23] Id. at *125.

[24] Id.

[25] See Mattingly & Hoffman, supra note 1; Vielkind, Mai-Duc & Ansari, supra note 2.

[26] Thomason & O’Leary, supra note 4 (“The Chronicle has so far identified 611 such campuses.”).

[27] Klaassen, 2021 U.S. Dist. LEXIS 133300, at *124-25.

[28] Id.

[29] Jacobson, 197 U.S. at 25, 31.

[30] Klaassen, 2021 U.S. Dist. LEXIS 133300, at *124-25.