BY PAUL A. DILLER
Many universities throughout the United States are mandating COVID-19 vaccines for students, faculty, and staff.
The pandemic and associated restrictions have battered many segments of society, and higher education has not been immune. Social distancing, online courses, mask wearing, and the cancellation of sports and activities significantly disrupted the campus experience; many students opted to take a year off from school, or simply not attend college altogether. For understandable economic and pedagogical reasons, universities are eager to return to something resembling normal as soon as possible.
Requiring vaccines of all community members, however, is premature at this point. The three vaccines currently allowed for use to prevent COVID-19 transmission and symptoms in the United States have each been approved by the Food and Drug Administration for “emergency use” only. The FDA has made clear that these vaccines are “unapproved” products and that they have “not undergone the same type of review as an FDA-approved or cleared product.”
Prior to the COVID-19 pandemic, the FDA had granted an emergency-use authorization (EUA) to a vaccine only once, in response to a lawsuit about an anthrax vaccine the military had required of service members. As a condition of that EUA, service members could not be punished for refusing the vaccine.
While universities have long required students to produce proof of vaccination against certain diseases, such as measles, these vaccines are well-established and fully approved by the FDA. By contrast, the COVID-19 vaccines’ current “unapproved” status makes it unwise for any institution or employer to make their use mandatory at this point. Although Pfizer and BioNTech on May 7 applied for full approval of their COVID-19 vaccine—the first of the three EUA-approved vaccine creators to do so—the FDA review process thereof is expected to take several months.
Vaccination requirements for employees are exceedingly rare in any workplace, and, until now, were essentially nonexistent in the university context. In keeping with the notion of shared governance that is a core principle in any university setting, universities should involve faculty in deciding on a vaccine requirement. While faculty members who oppose any mandate are protected by academic freedom (as well as, for some, tenure) when they air dissenting views, staff enjoy no such protections. They run the risk of being fired for merely objecting to a mandate, and an even greater risk for noncompliance.
Most employees do not routinely provide medical information to their employers, but now several universities will require that employees disclose their vaccination status. Those seeking an exemption will be asked to provide a medical or religious excuse for why they have not been vaccinated. In doing so, employees may need to reveal sensitive health or personal information that they have never previously shared with their employers.
The vaccine certification and exemption-seeking processes raise other questions: What standards will universities use to decide whether to grant exemptions? Who will review and make decisions about exemption requests, and what appeal process would be available to those whose requests are denied? Will tenured and other faculty members who refuse vaccinations be terminated or offered reasonable accommodations? Who will have access to the personal information submitted as part of the vaccine-certification or exemption-seeking process, and how will that information be protected?
Because there are more questions than answers at this point, universities should move cautiously and involve faculty—as well as students and staff—in any decision to mandate a vaccine campus-wide.
Guest blogger Paul A. Diller is professor of law and director of the Certificate Program in Law and Government at the Willamette University College of Law.
An excellent, and vital, article. May I add two observations: whether or not these experimental drugs are “approved” does not alter their inherent highly experimental genetic manipulation design. They are not “vaccines” in any traditional sense. Moreover, the approval agencies may be as pressured or compromised as the institutions seeking to distribute them. Second, as Yale’s Dr. Harvey Risch points points out, forcing submission to such human experiments is a violation of the Nuremberg Code. Last, university administrators are generally aware, or advised by their counsel, that they cannot mandate vaccines, nor can they “blackmail” faculty, students, staff or visitors, with vaccine quid pro quo such as access to faculty offices, student access to facilities, transcripts and other rights. University governance is walking a legal tightrope and faculty and students just have to say “No.” Readers may appreciate my recent article on university vaccine policy: https://www.dissidentprof.com/8-home/169-why-are-universities-pushing-covid-vaccination. They may also like to see a new report from faculty of Tel Aviv and Bar-Illan universities on vaccine risk: http://www.indymedia.ie/article/107824. Regards, ’96, University of Chicago; ’84, University of Texas at Austin. Former Guest Lecturer, Northwestern, Boston and DePaul Universities.
Isn’t it “interesting” that when faculty has a direct stake in an issue, their objections to the prevailing discourse or government recommendations is NOT described as “fear-mongering” or “conspiracy theory,” as it was, for instance, when Trump wanted to ban Chinese travel to the U.S. in January 2020. Even the vaunted (and often mistaken) Dr. Fauci was against it until he was for it. At the time, Biden tweeted that “Biden tweeted: “We are in the midst of a crisis with the coronavirus. We need to lead the way with science — not Donald Trump’s record of hysteria, xenophobia, and fear-mongering. He is the worst possible person to lead our country through a global health emergency.”
I’m no Trumpist or right-wing troglodyte; I just think that people’s ideology seems to change when their proverbial ox is gored. Why not follow the CDC’s (much-delayed) recommendations NOW? Is it because you think they were right when it kept schools closed and that now they’re wrong because it doesn’t fit your “science”?
Interesting blog. Isn’t there a de facto vaccination requirement of faculty based on academic credentialing and/or citizen requirements?
Prof. Diller’s excellent essay makes two points that invite a brief response. First, he notes that the Covid-19 vaccines now available have received only EUA approval. It might be useful to separate the scientific/clinical issues from the legal issues. Anti-vaccination propaganda frequently uses the EUA approval as a way of suggesting that the Covid-19 vaccines lack proven effectiveness or safety. However, that is not the case. With something like 150,000,000 doses administered to over 100,000,000 people in the U.S. alone, the vaccines – especially the mRNA vaccines from Moderna and Pfizer — have been used more times in more people than most rigorous clinical trials, and the data on outcomes show that these vaccines are both effective and safe, more so than many drugs that receive full approval and are in regular use. My guess is that they have not been fully approved yet only for bureaucratic reasons, not because more testing needs to conducting to develop good measures of their safety and effectiveness.
Second, Prof. Diller speculates that virtually no college or university has historically required other vaccinations, but that might not be as straightforward as he suggests. First, my own university does require that students have been vaccinated against several infectious diseases, but more importantly, the vast majority of students in American colleges were already required to be vaccinated for entry into primary schools: an additional requirement set by a college or university might be redundant, as has been pointed out for my own university. The small number of non-U.S. students who enroll are probably not in any danger, nor would they pose any danger, through some form of herd immunity.
Your framing of the problem could just as legitimately be re-framed, to suggest that vaccine advocates rely on such emergency authority to rationalize an experimental serum, and vaccine complications including blood clots. Moreover, your statement suggesting safety based on reported vaccines and short-period response ignores the inherent long-period genetic effect of the vaccine’s engineering. As well, you fail to mention the government’s own fatality statistics from the CDC’s VAERS system: over 3,000 people have died, they assert, directly from vaccine complication; an average of 30 deaths per day over the trial period, and growing. As Yale’s Dr. Harvey Risch points out, such human experimentation violates the Nuremberg Code. You may be interested in a report from Tel Aviv and Bar-IIlan university professionals, specifically on effects there from the Pfizer serum. I posted it here two days ago, but the editors are for some reason suppressing the information. Regards.
http://www.indymedia.ie/article/107824
https://www.dissidentprof.com/8-home/169-why-are-universities-pushing-covid-vaccination
“you fail to mention the government’s own fatality statistics from the CDC’s VAERS system: over 3,000 people have died, they assert, directly from vaccine complication;”
As far as I am aware your statement is false. Over 4,000 people have died in the U.S. after receiving a covid vaccine, but the CDC does not attribute their deaths to “vaccine complication.” Indeed, since the earliest groups of people to receive the vaccines were the elderly, a large number of those vaccine recipients would have died anyway of other causes, and there appears to be no link between the vaccine and thousands of deaths.
https://www.reuters.com/article/factcheck-vaers-deaths/fact-check-vaers-reported-vaccine-deaths-have-not-been-confirmed-or-deemed-causal-by-cdc-idUSL1N2MZ2H8
As for the CDC itself, try
“A review of available clinical information, including death certificates, autopsy, and medical records has not established a causal link to COVID-19 vaccines. ”
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/adverse-events.html
It appears that my longer comment was not accepted, but I’ll try this one:
“Over 273 million doses of COVID-19 vaccines were administered in the United States from December 14, 2020, through May 17, 2021. During this time, VAERS received 4,647 reports of death (0.0017%) among people who received a COVID-19 vaccine. CDC and FDA physicians review each case report of death as soon as notified and CDC requests medical records to further assess reports. A review of available clinical information, including death certificates, autopsy, and medical records has not established a causal link to COVID-19 vaccines.”
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/adverse-events.html
An interesting double standard has arisen on causality: thousands of deaths from co-morbidity were otherwise attributed to “Covid” by agencies and media. But now the same logic of morbidity is being denied to vaccine serum: One dies of “Covid” even if by other causes, but ipso facto apparently cannot die of experimental serum as a causal agent. This is not only a logical fallacy and dilemma, but a moral one: your casual remark that “they would have died anyway” is an astounding ratification of your ideological commitment, in addition to a fascinating abstraction and rationalization. You believe in the Covid consensus narrative, and indeed will voluntarily interpret data to confirm your bias. You also are favorably disposed to vaccine serum, in which case you should, by all means, roll up your sleeve. There is a fascinating report out today in the NYT, however, that does seem to confirm the continued adulteration of vaccine procedure: The New York Times just reported that 100 million vaccine doses are contaminated, and the pharma corporation responsible is under investigation. The way this program is being rushed is unprecedented and creating an array of risks that advocates, especially in higher education affecting young adults, should be more proactively cautious about.
NYT: https://www.nytimes.com/202….
Archived:https://archive.is/x9qKv
Thank you for the thoughtful comment. If you re-read my essay, you’ll note that I say that university vaccine mandates are largely unprecedented only for faculty and staff; I acknowledge that universities have long required certain vaccines of students.
Thanks for your clarification — this is consistent with my experience as well.
Cordially, Barbara
I’m not sure why we should use precedence to guide our decision-making process when COVID-19 is a relatively UN-precedented virus? It is NOT the same as measles and polio, etc., and the specificity of the disease and the chances of contracting it for college students should be factored into any mandatory rules.
Public health often trumps (pardon my language) individual choice, whether we like it or not.
Certainly, vaccination is a good thing and maybe should be required of students, faculty, and staff. HOWEVER, I’m under the impression that one is even safer if one has recuperated from COVID-19 than if one had just taken a “jab” or two of a 90-95% effective vaccine.
If that is the case, why should anyone have to be vaccinated if they are already more immune to the Plague than people who have been vaccinated? Is it because there’s no easy way to determine whether someone has the requisite antibodies in their system? Wouldn’t someone’s hospital records or a doctor’s note suffice?
As usual, I also object to the indiscriminate use of exaggeration, such as “would not pose ANY danger.” Even Barbara Piper concedes that “The small number of non-U.S. students who enroll are PROBABLY not in any danger.” Who, for instance, would want to cross a heavily trafficked street if there was a 5-10% chance of being hit by a car and a 0.1% chance of being killed? Maybe some daredevils would take that risk but I’d probably be more cautious.
Readers may appreciate a new student article on campus vaccination, that just came out at the media site “Chicago Thinker” at the University of Chicago: https://thechicagothinker.com/6-reasons-college-vaccine-passports-are-absurd-and-legally-objectionable/. The young woman who wrote is to be commended.