Virginia’s public colleges and universities don’t have the authority to require students to get a coronavirus vaccine to enroll or attend in-person classes, the state’s new attorney general found in his first opinion since taking office this month.
It is unclear if the step will have any practical effect on students currently on campuses. More than 90 percent of students at most of the state’s four-year public schools are already vaccinated and, in some cases, boosted.
But because the legal analysis comes from the state’s top prosecutor, schools could be under pressure to conform, potentially affecting future students on more than a dozen campuses. A recent order from new Gov. Glenn Youngkin (R) has already caused some universities to roll back vaccine requirements for employees.
The Miyares opinion has prompted at least one school to change its policy. George Mason University, Virginia’s largest public research university, said Friday that its students are now “strongly encouraged” to get vaccinated. About 96 percent of students got coronavirus vaccines under the earlier mandate.
Miyares found that state lawmakers could pass legislation allowing public colleges and universities to mandate coronavirus vaccines, but that has not happened. State law specifically requires college students to be vaccinated against measles, tetanus and four other diseases to enroll, but covid-19 is not among them.
“The General Assembly, and the General Assembly only, has the power to mandate the COVID-19 vaccine as an enrollment or in-person attendance requirement,” Miyares said Friday in a statement. “While I encourage everyone to get the vaccine and believe it is a vital tool in our fight against COVID-19, Virginia public universities currently do not have the power to mandate the COVID-19 vaccine on students.”
Most four-year, public universities and colleges in the commonwealth require students to get a coronavirus vaccination. The schools include the University of Virginia, Virginia Tech, James Madison University, Virginia Commonwealth University, Virginia State University, Norfolk State, William & Mary and the University of Mary Washington. Many private colleges have also adopted mandates.
Brian Coy, a spokesman for U-Va., said Friday that officials are analyzing the opinion and plan to share more information when their review is finished. He added that more than 99 percent of students on the campus are vaccinated and boosted.
Officials at VCU are also reviewing the opinion to figure out how it will affect students, particularly those who work in hospital or clinical settings, said Michael Porter, a spokesman. More than 95 percent of students had received vaccines by the time the fall semester ended in December, he said.
At William & Mary and Virginia Tech, which have both reported student vaccination rates of at least 95 percent, leaders are making similar determinations about Miyares’s opinion, officials said. A JMU spokesperson said the university is looking over its coronavirus policies to ensure they comply with the law, but officials have not announced any changes. About 92 percent of students on the Harrisonburg campus are vaccinated.
Other schools did not immediately respond to requests for comment.
Legal opinions by the state attorney general constitute the office’s analysis of existing law. The opinions are not legal rulings, and courts are not bound to them, but they do offer guidance for state agencies trying to comply with the law.
The ruling reverses one by Miyares’s Democratic predecessor, Mark R. Herring, whose office found in April 2021 that Virginia law gave state colleges and universities the authority to require coronavirus vaccinations. “Virginia’s colleges and universities may take steps to protect the health and welfare of their students by conditioning attendance in various activities or settings on receipt of an approved COVID-19 vaccine,” he wrote.
Miyares said Herring’s ruling failed to consider a different section of law that was key to his ruling.
Earlier this month, many state colleges and universities rolled back requirements for staff to be vaccinated after Youngkin issued an executive order saying state government agencies — including colleges and universities — could not require the vaccine as a condition of employment. Some of the schools said they would now “strongly encourage” the vaccines for employees.
Miyares said he issued the new opinion following a request by Youngkin for legal guidance on whether the state’s public institutions of higher education could require vaccines for students. In a news release, Miyares’s office said he was personally vaccinated and boosted against the coronavirus and encouraged others to do so.
While schools do not have to conform to the attorney general’s opinion, Miyares’s legal analysis carries weight, said Carl Tobias, a law professor at the University of Richmond. Campuses that choose not to rescind their vaccine mandates may be concerned about retaliation.
“It’s a delicate and awkward thing,” Tobias said. “The schools don’t have to obey the advisory opinions that the attorney general issues. At the same time, though, they could risk running afoul of the attorney general and governor, in terms of funding, or whatever their relationships with those statewide officials and members of the General Assembly.”
It remains unclear how the issue will evolve, but Tobias laid out several possibilities. The universities could rescind their mandates, which might lead students, their parents or campus employees to litigate. Universities may split up and enforce different policies, or team up and keep mandates in place.
Dorit R. Reiss, a law professor at the University of California Hastings School of Law who focuses on legal issues related to vaccines, said 10 states have banned colleges and universities from mandating coronavirus vaccinations, including Florida, Arkansas and Tennessee.
Many universities across the country have enacted mandates and amended them to include booster shots in recent months, with exemptions offered for medical or religious reasons. Many students also have sought coronavirus protections, including vaccine mandates.
In August, the Supreme Court declined to hear a challenge to Indiana University’s coronavirus vaccine mandate that was brought forward by a number of students.
Reiss said she thought Miyares’s ruling was on firm legal ground, but so was that of his predecessor, Herring.
“Both are legitimate interpretations,” Reiss said. “Neither opinion is clearly wrong. Different people can see it differently.”
Miyares’s move comes the same week that media outlets reported he had fired legal counsel at two prominent state schools: U-Va. and George Mason.
His office said that he fired Tim Heaphy at U-Va. after reviewing unspecified legal decisions, and that Brian Walther was removed at George Mason because Miyares wanted someone who shared his “philosophy and legal approach.” Anne Gentry, a 15-year employee of George Mason, was named interim counsel.
Heaphy was the university’s counsel as U-Va. sorted through issues related to the coronavirus, including the campus’s introduction of the vaccine mandate.
The firings angered Virginia Democrats, who said the positions have traditionally not been considered political jobs. They also accused Miyares of firing Heaphy because he was on leave working as the top investigator for the House panel investigating the Jan. 6, 2021, attack on the U.S. Capitol. Miyares vigorously denied that was his motivation.
Youngkin has placed an intense focus on education, especially at the K-12 level. On his first day in office, he issued three executive orders related to education, including one repealing mask mandates.
The mask-optional order has been highly controversial. It seeks to leave decisions on masking up to parents whose children attend all public and private K-12 schools in Virginia — contravening federal health guidance and a mask mandate instituted by Youngkin’s predecessor, Ralph Northam (D).
A Washington Post analysis shows that more than half of public school districts are defying the order by continuing to require masks The order has already drawn two lawsuits, one from parents and one from seven school boards.
Youngkin’s flurry of activity around education fulfills his campaign promise to give parents greater control over what and how their children learn in the classroom. But critics charge that he is inflaming a divisive political battle in the state while threatening serious health and academic consequences for students and teachers.
Youngkin and his top officials, including Miyares, have defended the approach in interviews this week. “We live in a pluralistic society,” Miyares told news outlet WAVY on Monday, arguing for the mask-optional mandate. “You absolutely have the right to have your child masked 7 or 8 hours a day but recognize there are going to be other parents who reach a different conclusion.”