Florida colleges likely to face uphill battle with COVID-19 vaccine mandates, says legal expert

8 On Your Side

CLEARWATER, Fla. (WFLA) – No vaccination, no class: That’s the message being sent to some Tampa Bay college students.

A growing number of colleges and universities, more than 100 nationwide, say a COVID-19 vaccine will be mandatory this fall, according to a list maintained by The Chronicle for Higher Education.

8 On Your Side looked at whether a vaccine mandate is legal in Florida. We’ve identified exactly how upset students can fight back against a mandate.

Nova Southeastern University is the first institution in the state to require the COVID-19 vaccine.

The university is requiring that all students must be fully vaccinated by August 1st with limited exceptions made for medical and religious reasons. 8 On Your Side went to the Clearwater campus and found many students don’t want to be forced to get the shot.

“I feel like it shouldn’t be a requirement due to the unknown,” Jessica Schirmer said. “I’m trying to delay it as much as possible.”

Schirmer, 20, is getting a Bachelor of Science in Cardiovascular Sonography at NSU’s College of Health Care Sciences. Fellow students like Brooke Sawyer, 21, have just weeks to decide to get the COVID-19 vaccine.

“I think that people that want to get it should get it,” Sawyer said, “but in my opinion, I’d rather not because we’re still in the experimental phase.”

The private Florida institution is joining more than 100 U.S. colleges and universities now mandating COVID-19 vaccines to ensure a safe return to campus.

But is this legal?

More than 115 years ago, the Supreme Court held that states can compel vaccinations.

“The 1905 decision in Jacobson versus Massachusetts recognizes that states have significant powers under the Constitution,” said Professor I. Glenn Cohen, a Harvard Law professor and leading expert on medical ethics. “A state can definitely introduce a vaccination mandate should they so decide to do.”

We know colleges require proof of vaccines for measles, mumps, and meningitis but the coronavirus is a bit different.

The COVID-19 vaccines only have Emergency Use Authorization rather than the standard, full U.S. Food and Drug Administration approval. Some legal experts believe the shots, approved only for emergency use, can’t be mandated.

Professor Cohen disagrees.

“The statute is intended to tell people that they have a choice whether to get vaccinated or not but really has no meaning as to whether a private employer or a private university can require you to be vaccinated,” Cohen said. “It’s your choice, but if you choose not to be vaccinated, this is one of the consequences.”

Cohen outlined other top challenges students could bring like a lawsuit, under the Americans with Disabilities Act.

“The…challenge would be somebody who has a disability within the meaning of the Americans Disabilities Act,” Cohen said, “who will claim that if they are required to be vaccinated, they can’t be vaccinated and therefore, again, the university has to accommodate them.”

A student could also raise a conscientious objection to vaccination or argue the vaccine mandate has no basis in scientific fact or medical need.

“Another challenge might be brought would be to say that if the reasons for requiring the vaccination really had no basis in scientific fact or medical need,” said Professor Cohen, “then it is kind of an unfair obstacle that could be brought against someone.”

But here in the sunshine state, there’s an even stronger challenge.

“We’re not doing any vaccine passports,” said Gov. Ron DeSantis during a news conference in Panama City on March 18, 2021. “I think it’s a bad idea.”

The day after Nova Southeastern University announced their vaccine mandate, Gov. DeSantis signed an executive order that states: “…businesses in Florida are prohibited from requiring…any documentation certifying COVID-19 vaccination…”

“There is a question here that I think is being debated by some of the universities, do they qualify as a business?” said Professor Cohen.

Cohen says if the governor’s order is deemed to be lawful and applies to universities, then both public and private institutions would be unable to mandate vaccinations.

Nova Southeastern University says they’re reviewing the governor’s order, but they have yet to amend their vaccine policy.

Florida now has two options: they could file a lawsuit or threaten to withhold funding from the university. 8 On Your Side reached out to the state to see if they’re planning on taking legal action against NSU.

Meanwhile, Cohen believes, in many other states students who don’t want the vaccine will have an uphill climb in the courts.

“My own view is that these lawsuits will not succeed unless you’re in a state like Florida where the state law read and the governor or the legislature has acted to prevent it,” said Professor Cohen.

Other institutions are trying to encourage students to get vaccinated. For example, at the University of Florida, vaccinated students will not have to be routinely tested for the virus.

Nova Southeastern University posted this update on their website on April 8th:

“Since our April 1st announcement concerning vaccinations, there has been an executive order issued by the governor on the subject and we are currently reviewing all sections of that order.

Additionally, the President’s Office has been hearing from the NSU community in the past few days—some expressing support and others sharing your questions and concerns. All of this is being considered thoughtfully and we will have more details for you by next week.

We have received a lot of interest about these announcements, and we will continue to follow the most current medical science and advice from our world-class health care experts, while also following state and federal laws.

Our priority has always been to save lives, to prevent the spread of COVID-19, to deliver the best educational experience, and to protect our students and employees to the best of our ability.”

Nova Southeastern University statement on Gov. DeSantis vaccine passport executive order.

Copyright 2021 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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