Former AG McKenna: ‘May be that’ colleges do have authority to require vaccination

May 9, 2021, 7:40 AM
vaccines, colleges...
The front of the line at the Lumen Field Event Center vaccination site. (MyNorthwest photo)
(MyNorthwest photo)

Many colleges and universities in Washington state have announced that the COVID-19 vaccine will be required for students when they return to campus in the fall, at both public and private colleges. Is any of this legal, and if it is, under what authority?

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Former Washington Attorney General Rob McKenna says it appears public colleges can mandate these vaccines, but it hasn’t yet been tested in court.

“There are arguments being made right now by plaintiffs who have lost their jobs because they refused to become vaccinated, that approval of these vaccines under emergency use authorization isn’t sufficient,” McKenna told the Jason Rantz Show on KTTH. “The problem they have in those lawsuits, and the problem that a college student would have pushing back against the University of Washington’s requirement, for example, is that the language in the emergency use authorization for each of these vaccines doesn’t speak to employers or to colleges.”

“It’s pretty clear that the federal government can’t require every citizen to go out and get vaccinated. But we have at-will employment in this country and we have people making voluntary choices to enroll in certain schools, so it may be that employers and colleges do have the authority to require people to provide proof of vaccination,” he added.

Even if a student enrolled in a school before the mandate, McKenna says they’re not grandfathered in.

“Conditions change,” he said. “… And it’s not like people weren’t aware that the vaccinations were becoming available and weren’t aware that universities and colleges have been pretty major sites for spreading the virus. So if you’re the college, the university, or the employer, you have to also think about what do I need to do to reduce my own liability? What is the burden on me as an institution if people are allowed to come back without proof of vaccination, and a super spreader event results or some spreading results? So they’re wrestling with it from that point of view as well.”

The expectation that a student may have against being required to be vaccinated, McKenna says, will be weighed against the public health rationale.

“While the vaccines are available under an EUA and therefore technically still experimental, we all know that hundreds and hundreds of millions of doses have been administered and have been proven to be effective and very, very safe,” McKenna said. “I mean, nothing is perfectly safe, obviously you can have a few adverse results in a million. But the idea that, well, it’s experimental, therefore I shouldn’t have to get it is really weakened by the fact that these vaccines have been so widely deployed, and successfully deployed for that matter.”

Jason asked if a court would take into consideration that a college-aged student is considered at lower risk for severe illness from COVID-19.

“Thank goodness that young people generally don’t get sick from COVID, so that’s a good thing, but they can be carriers,” McKenna said. “They can spread it to people who are older, who are on campus, or people they encounter off campus who are older. And I think that’s one of the rationales for requiring them to get vaccinated.”

In terms of the schools, including the University of Washington and Pacific Lutheran University, that have issued a requirement for students to be vaccinated but not yet for staff, McKenna agrees with Jason that it’s an inconsistency.

“It seems to me it’d be more consistent for them to require it,” he said. “At the same time, those employees are employees. They’re not there because they’re interacting with students, so it’s not the same argument that you would make for teachers to get vaccinated. But it is an inconsistency.”

That inconsistency could matter if someone were to fight this in the court and assert a liberty interest, McKenna explained, or a constitutional right not to be forced to do something.

“You’re saying, look, why am I being required to do this when similarly situated people, i.e. other people at the University of Washington, are not being required? What is the rational basis for that? Is it just that the university doesn’t want to take on the unions? Is that enough of a basis to impose different requirements, depending on how you’re situated? … It’ll be interesting to see if any student tests that,” he said.

There’s also inconsistency where students and employees of the university overlap.

“That makes the student’s case who’s not an employee of the university even stronger, doesn’t it? ‘The only difference is I’m not employed by the university, but my fellow student who is is exempt from this requirement.’ What’s the rational basis for that?” McKenna asked.

“If this mandate is being imposed under an emergency order of some sort, emergency orders, as we’ve seen for the last year or more, do give government a lot of power, but there are limits to it. The government doesn’t get to do anything it wants without review,” he said. “There has to at least be a rational basis for making distinctions between similarly situated people and whether they are subject to a mandate. Rational basis is not a very high standard to meet.”

That said, McKenna thinks it could be different for employers and for higher education because they might not be operating under emergency powers, and would be imposing requirements they think they need to protect their own interests, including others on campus.

“It’s just that that argument is undermined when they’re not requiring everybody who comes on campus to work or go to school be vaccinated,” he said. “It just looks like a major inconsistency.”

As far as whether or not there’s grounds to require the COVID-19 vaccine in high school, McKenna points out that the United States has a long history of requiring public school students to be vaccinated.

“So I don’t think it makes much difference,” he replied. “The thing there is that only recently have vaccines been approved under an EUA for 16 year-olds, or now I guess that may go back to as young as 11, but I think that the power of the public schools to require students to be vaccinated is pretty well established and it’s not likely to be different in this case.”

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Former AG McKenna: ‘May be that’ colleges do have authority to require vaccination