SAN DIEGO (KGTV) -- More than a half-dozen colleges and universities in San Diego County say they will not require the COVID-19 vaccine for the fall semester, at least not yet.
Some of the schools said federal law prohibits requiring a vaccine that only has emergency authorization, but elsewhere in the country, some legal scholars have dismissed that argument and a handful of universities are moving forward with mandates.
Rutgers University in New Jersey became the first large school to announce a COVID-19 vaccine requirement last week. Students taking in-person classes in the fall semester will be required to get a shot.
“We're trying to build the safest campus in America. That's really what it comes down to,” said Rutgers chief operating officer Antonio Calcado.
Cornell University in New York and Roger Williams University in Rhode Island announced they will do the same. Syracuse University hinted it may follow suit.
But across San Diego County, colleges and universities are steering clear of a mandate.
ABC 10News sent inquiries to UC San Diego, San Diego State University, University of San Diego, Point Loma Nazarene University, San Diego Community College District, Grossmont-Cuyamaca Community College District and California College San Diego.
All of the schools said they would strongly recommend vaccination for students and staff, but said they had no plans yet to require it.
“At this time, we do not anticipate making the COVID-19 vaccines mandatory for fall enrollment,” a spokeswoman for the University of California system said in a statement.
San Diego State University and San Diego Community College District specifically cited the fact that the FDA has not yet granted any COVID-19 vaccine full approval.
“The San Diego Community College District will continue to comply with federal law, which prohibits requiring a vaccination approved under an emergency use authorization,” said San Diego Community College District spokesman Jack Beresford.
Attorney Dan Eaton said there’s a reason why many schools and universities are reluctant to impose a mandate. “We are dealing with a coronavirus that is moving faster than the speed of law,” he said.
The federal government has not issued guidance on whether universities can mandate vaccines that have only emergency authorization, but guidelines released in December suggested that employers could.
Colleges and universities already require certain immunizations as a condition of enrollment, but those vaccines have full FDA approval. Critics point a federal statute that says people offered a product with emergency authorization must have the “option to accept or refuse administration of the product.”
But Eaton thinks universities do have the authority to require a vaccine, even one with emergency status.
“Colleges and universities have broad discretion with respect to vaccination under the very, very few precedents that there are,” he said.
That’s partly because people do not have a “right” to a college education in the same way that children have a right to a K-12 education, Eaton said.
Then there’s the science. A study from the Centers for Disease Control and Prevention found associations between in-person learning at college campuses in 2020 and spikes in infection rates at the county level.
The tricky part will be how universities handle students who refuse the vaccine because of a disability or on religious grounds.
Schools will have to offer students with a legitimate medical risk to vaccination a “reasonable accommodation,” but there’s debate about how much universities will have accommodate religious claims. Many private schools do not allow religious exemptions to other vaccinations, but there may be different considerations at public universities, according to an essay in the Harvard Law Review.
Does that mean students who refuse vaccination would be required to take online classes only, with no access to campus or the dorms?
“You can expect that some of those accommodations are going to be met with some sort of a resistance,” Eaton said. “I expect court challenges.”
But when it comes down to it, Eaton thinks universities can enforce a form of vaccination segregation if they want to.
“The university can choose among alternative accommodations, and one of which is to keep those students that have not been vaccinated for whatever reason away from the broader campus community in furtherance of the compelling interest in public health,” he said.
This week, Pfizer announced it will seek full FDA approval of its vaccine, a move that could change the equation for some schools.
“At this time, the [San Diego Community College District] has not determined whether it will require students and/or employees to be vaccinated if the Federal Drug Administration fully authorizes one or more COVID-19 vaccines. We are continuing to follow public health protocols while offering many classes online until it is safe to have larger numbers of people back on our campuses,” Beresford said.