Can USC mandate coronavirus vaccines? By September, yes.

As the United States becomes more and more hopeful of a return to some kind of normalcy with the coronavirus vaccine roll-outs ramping up, colleges around the country are beginning to consider whether they will require their students to be vaccinated before they return to campus in the fall. 

Both Rutgers University and Cornell University have already announced that for the Fall 2021 semester, returning students will be required to be vaccinated against the coronavirus — unless they provide a religious or medical reason for an exemption. Other colleges are expected to follow Rutgers and Cornell’s lead in the coming weeks. 

However, critics point out that all three vaccines on the United States market — Pfizer, Moderna and Johnson & Johnson — have only been given an emergency use authorization from the U.S. Food and Drug Administration. This is very different from the typical vaccinations required by most colleges such as measles, rubella and meningitis, which have been granted full FDA approval. 

There is no legal precedent for mandating emergency use authorized vaccines to college students. However, there is a history of case law over the last century and a half which supports the idea of mandated vaccinations that support public health, especially those which are communicable and dangerous to the public at large, such as chickenpox, measles, polio and tuberculosis. 

This history of U.S. case law on mandatory vaccinations began in 1905 with the case of Jacobson v. Massachusetts. The Supreme Court in Jacobson ruled that the city of Cambridge, Mass. could fine residents who refused to be vaccinated against smallpox after a smallpox epidemic swept through the Northeast in the early part of the 20th century. The Supreme Court described how important it was for states to protect the public “against an epidemic of disease which threatens the safety of its members” and further articulated that a reasonable public health interest may outweigh the interests of a single citizen to reject a vaccine. 

The Jacobson Court limited its holding to the case before it, and subsequent cases on mandatory vaccinations have always considered this same question: how much of a threat is required to justify forcing people to accept a government imposed injection into their person? 

The courts balance the risk of serious injury to the public against the government forcing people to be injected against their will. The Fourth Amendment allows citizens to be secure in our persons and free from unreasonable searches by government action. A vaccination could be perceived as a search for some, and certainly a state school, such as the University of California, Los Angeles or University of California, Santa Barbara, is a government actor. So where does that leave private institutions such as USC?  

Pfizer is expected to apply for full FDA approval this month. Moderna and Johnson & Johnson will undoubtedly follow shortly thereafter, removing the emergency use authorization argument against mandating the coronavirus vaccine. But, even assuming these three vaccines are still only in the emergency use phase of distribution by Fall 2021, universities — especially private ones like USC — should mandate coronavirus vaccinations in the interest of public health.

In December, the U.S. Equal Employment Opportunities Commission granted general acceptance to private employers to mandate coronavirus vaccination for their employees. The only exceptions that employers can allow are religious or medical exemptions. 

Like private employers, USC and other private institutions of higher learning should mandate the vaccination of its students this fall — absent a religious or medical reason. It would be perfectly reasonable for USC to require those seeking an exemption to the vaccine based on religious or medical reasons to be regularly tested for the coronavirus weekly or bi-weekly, without proof of immunization. 

As Jeffrey J. Nolan, a senior lawyer at Holland & Knight who specializes in education and employment law, said “If a student chooses to come to an institution, they agree to abide by the rules and some of those are pretty intrusive, but they are often necessary. It doesn’t mean someone won’t litigate it, but I see less nuance when it comes to the student-side of things than the employment-side of things.”