National Association of College and University Attorneys
June 19, 2014 | Vol. 12 No. 6
TOPIC:
REQUIRED IMMUNIZATIONS ON CAMPUS
AUTHORS:
Jessie Brown
Will Versfelt
INTRODUCTION:
The legality – and morality – of compulsory vaccination are hardly new issues, but they rarely stray far
from public consciousness. Most attention regarding vaccination requirements is paid to children who
attend elementary, middle, and high school, as most vaccinations are given to young people. [1] But the
issue of compulsory vaccination also affects institutions of higher education. Colleges and universities,
both public and private, must grapple with laws concerning student vaccinations. This NACUANOTE will
first describe the current legal landscape, with particular emphasis on the various types of exemptions
from compulsory vaccination laws. It will then address how to balance legal compliance concerns with
institutions’ interests in community safety and student well-being.
DISCUSSION:
The practice of vaccination involves injecting microscopic amounts of viruses or disease-carrying agents
into the immune system in an effort to help ward off later outbreaks of the illness. This process can
reduce, or even eliminate, the risk of later infection. Vaccines have had a tremendous effect on improving
public health, having been instrumental in eradicating smallpox and polio. [2]
The preservation of public health has historically been the responsibility of state and local governments.
Indeed, there are no generally-applicable federal laws mandating vaccinations; all laws requiring
vaccination are, and have always been, enforced at the state or local level. Massachusetts enacted the
first mandatory vaccination law in 1809 and, in 1855, became the first jurisdiction to enact a school
vaccination requirement. [3]
Jacobson v. Massachusetts [4] is commonly regarded as the seminal case regarding a state or
municipality’s authority to institute a mandatory vaccination program. In Jacobson, the U.S. Supreme
Court upheld a Massachusetts law that gave municipal boards of health the authority to require the
smallpox vaccination of people over 21 years of age. [5] The petitioner, a minister, argued that “a
compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the
inherent right of every freeman to care for his own body and health in such way as to him seems best,”
calling the law an “assault upon [one’s] person.” [6] The Court, however, was unmoved, holding that “the
police power of a State must be held to embrace, at least, such reasonable regulations established
directly by legislative enactment as will protect the public health and the public safety,” and that the liberty
secured by the Constitution “does not import an absolute right in each person to be, at all times and in all
circumstances, wholly freed from restraint.” [7]
Seventeen years after Jacobson, the U.S. Supreme Court heard its only other case on point. In Zucht v.
King, [8] the Court rejected a challenge from parents who claimed that requiring them to have their
daughter vaccinated before attending school violated their Fourteenth Amendment right to liberty without
due process of law. [9] The Court repeated that states have the authority to grant local municipalities the
power to order vaccination of students in order to protect the general welfare of all residents. [10]
Out of this historical backdrop emerged today’s vaccine landscape, in which every state has a law
requiring children to be vaccinated before they enroll in public or private school. [11] Of course, all
modern mandatory vaccination statutes also provide for at least one exemption from the general
requirement: each statute includes a medical exemption for those people who are medically unfit to be
vaccinated (usually due to a severe illness or a vaccine allergy). [12] Many other statutes go on to include
exemptions based on religious or philosophical beliefs. [13] Insofar as the majority of vaccination cases
involve challenges that arise in light of religious exemptions, this Note will focus on those exemptions and
how colleges and universities might best adapt and apply their policies taking into account such
exemptions.
Representative Statutes
Almost all statutes provide for religious or philosophical exemptions of some sort, but some statutes make
qualifying for an exemption more difficult than others. The following statutes are summarized for
illustrative purposes, and are loosely presented in order of increasing rigidity. Although several statutes
specify diseases and point out which vaccinations are mandatory, our focus remains on the concessions
they provide to potential objectors in the form of exemptions.
Virginia’s required immunizations apply only to public colleges and universities. [14] Private institutions
are free to impose their own restrictions, or none at all. The Virginia statute provides that, at public
institutions, all incoming full-time students shall be vaccinated against meningococcal disease and
hepatitis B. [15] It also provides that students, or a parent or legal representative if the student is a minor,
can avoid vaccination if they review “detailed information” about the risks of those two diseases and
simply choose not to be vaccinated. [16] Although the statute does not mandate action by private
colleges and universities, it does specifically encourage them to develop procedures for providing
information about the risks associated with meningococcal disease and hepatitis B and the availability
and effectiveness of vaccines against them. [17] Overall, the statute’s liberal opt-out provisions and
inapplicability to private institutions combine to make it relatively easy for a student to find an applicable
exemption. [18]
In Pennsylvania, the “College and University Student Vaccination Act” [19] states that an institution of
higher education must “prohibit a student from residing in a dormitory or housing unit unless the student
has received a one-time vaccination against meningococcal disease.” [20] It goes on to note that, if the
student is a minor, the vaccination may only be administered with the consent of the student’s parent or
guardian. [21] Pennsylvania’s statute does not differentiate between public and private colleges. At first
blush, the statute might seem strict, but it goes on to provide a rather broad exception: as long as the
institution provides “detailed information on the risks associated with meningococcal disease and the
availability and the effectiveness of any vaccine” to the student (or the student’s parent or guardian, if the
student is a minor), the student can circumvent the requirement and choose not to be vaccinated “for
religious or other reasons.” [22] The statute’s authorization of medical, religious, and philosophical
objections means that students can refuse the otherwise mandatory vaccinations with relative ease. [23]
New York makes opting out more difficult. In New York, institutions for higher education authorized to
confer degrees must receive acceptable evidence of each student’s immunization, which is defined as:
an adequate dose or doses of an immunizing agent against measles, mumps and rubella which
meets the standards approved by the United States public health service for such biological
products, and which is approved by the state department of health under such conditions as may
be specified by the public health council. [24]
Along with the ubiquitous medical exemption, New York provides for a religious exemption as well: the
immunization requirement does not apply to a student “who holds genuine and sincere religious beliefs”
that are contrary to immunization. [25] New York’s statute, then, is tougher than Pennsylvania’s, in that it
does not allow a purely philosophical exemption and requires an objector’s beliefs to be both religiouslybased and “genuine and sincere.” [26]
Minnesota goes one step further. The main text of its statute reads: “[N]o student may remain enrolled in
a public or private postsecondary educational institution unless the student has submitted to the
administrator a statement that the student has received appropriate immunization against measles,
rubella, and mumps after having attained the age of 12 months, and against diphtheria and tetanus within
ten years of first registration at the institution. This statement must indicate the month and year of each
immunization given.” [27] The statute’s carve-out for exemptions is even stricter than New York’s,
requiring a notarized statement that the student has not been adequately immunized “because of the
student’s conscientiously held beliefs.” [28] Texas is similar in that its Education Code requires an
affidavit for its exemptions. The fact that Minnesota and Texas require this documentation puts them, and
other states like them, in a category of more rigid exemptions. [29] The fact that Minnesota and Texas
require this documentation puts them, and other states like them, [30] in a category of more rigid
exemptions.
Finally, West Virginia and Mississippi are the only states with statutes that do not provide for religious or
philosophical exemptions of any kind. [31] Predictably, in addition to their required vaccinations for
children, both states strongly recommend numerous vaccinations before students enter colleges and
universities. [32]
Gray Areas: Interplay Between Law and Policy
Given the varied statutory background across the country, individual institutions must tailor policies giving
due consideration to their state’s requirements. If state law requires that exemptions be handled in a
certain way, institutions must work within that statutory framework.
Of course, things get murky when complying with the state statute leaves significant room for
interpretation. In some cases, a school may require proof of immunization for more diseases than the
applicable state statute, which can lead to a situation in which the state statute’s exemption(s) do not
contemplate a student’s request to refuse, say, a pertussis vaccine. Faced with such a dilemma, public
institutions must turn their attention to federal law, particularly the First Amendment. [33]
In order to support a claim for violation of one’s First Amendment rights in this arena, a student must first
demonstrate that her refusal to be immunized is grounded upon a sincerely held religious belief.
Institutions may be understandably wary of evaluating the authenticity of a student’s belief, a fear that
was underscored in Sherr v. Northport-East Northport Union Free School District. [34]
The Sherrs had been denied an exemption under New York’s religious exemption statute by the school
district because, although they claimed religious opposition to vaccination, they were not “bona fide
members of a recognized religious organization” whose teachings oppose vaccination. [35] The U.S.
District Court for the Eastern District of New York found that New York’s limitation of the religious
exemption violated both the Establishment Clause [36] and the Free Exercise Clause. [37] The court
found that the limitation “[ran] afoul” of at least the last two prongs of the Lemon test. [38] In striking down
New York’s limitation, the court found that “sincerely held” religious beliefs that oppose vaccination should
suffice, regardless of whether they accord with a recognized religion. [39] As mentioned above, New
York’s current vaccination law now reflects this revision. [40]
Although it is marginally more difficult in jurisdictions that require documentation, demonstrating that one’s
religious beliefs are “sincerely held” is often quite simple. [41] And assuming that a vaccination
requirement would indeed infringe upon those beliefs, the First Amendment analysis turns to whether the
institution’s limitation on religious liberty is the least restrictive means of achieving a compelling state
interest. [42]
Such an assessment is particularly important at teaching hospitals or school-sponsored clinical programs,
where students frequently come into direct contact with others who are at higher risk for infectious
diseases. [43] How then should an institution handle a student who wants to participate in a clinical
program but who objects to vaccination? First, the institution should identify the interests to be served by
its immunization requirement, such as protecting the health and safety of patients – and the student – as
well as the integrity of the clinical education. While there is no law or case directly on point, the
institution would probably have a significant interest in imposing its immunization requirements, and could
justify its reasoning by presenting vaccination as a low-risk, high-value means of protecting vulnerable
patients and health care workers alike. The institution should also be prepared to demonstrate that it has
considered whether there are less restrictive means to address its interests. [44]
Still, in many cases the university lacks the ability to control the policies of its clinical partners and may be
hesitant to push too hard given the often arduous task of securing necessary clinical placement sites.
Clinical sites, for their part, are typically not bound by the state statutes regarding vaccinations and are
thus unwilling to make exceptions. In these cases, the university should strive to include clear language
in its handbook and/or program descriptions to explain the clinical requirement and highlight its lack of
control over clinical sites’ vaccination requirements. [45] Ideally this will spark dialogue before admission,
and especially before enrollment, preempting future problems with objecting students.
A similar analysis applies in the context of the Americans with Disabilities Act [46] (ADA) and Section 504
of the Rehabilitation Act [47] (Section 504). In brief, the ADA and Section 504 prohibit discrimination on
the basis of disability, which is defined as “a physical or mental impairment that substantially limits one or
more major life activities.” [48] If a student were to claim that his or her medical unfitness for vaccination
constituted a disability under the ADA or Section 504, the institution must consider reasonable
accommodations for that student. [49] Reasonable accommodations are to be considered on a case by
case basis, so the institution has to complete an individualized assessment analysis based on the
circumstances of each student, bearing in mind that the disability laws do not require accommodations
where the modification would fundamentally alter the nature of the program or result in an “undue
burden.” [50]
CONCLUSION:
Institutions that find themselves confronted by these thorny issues should revisit their mandatory
vaccination policies. Working within the parameters of the relevant state statute(s) – which, as described
above, can range from open-ended to highly specific – institutions should tailor their policies to reflect
applicable law and their needs. An institution operating under strict statutory constraints may not need to
be as specific in its policies as an institution whose state laws are more nebulous. And institutions with
clear issues (such as teaching hospitals) need to be especially vigilant in drafting policies with input from
all relevant parties, and making their position obvious to prospective enrollees. The vast majority of
college and university students will have received the mandatory vaccinations as children. But colleges
and universities must prepare to face the sensitive issue of a student (or parent) who opposes its
vaccination policies.
RESOURCES:
University of Richmond: http://as.richmond.edu/resources/bridge-to-successforms/Complete%20Health%20History%20and%20Immunization%20Form-2014-2015.pdf (see last page
of PDF for student waiver)
UPenn: http://www.vpul.upenn.edu/shs/immreq.php (See “Exemptions from Requirements” section, at
bottom)
SUNY Albany: http://www.albany.edu/health_center/immunizationreqs.shtml (includes link to religious
exemption letter)
UT-Dallas: http://policy.utdallas.edu/utdpp1079 (includes link to request affidavits)
AUTHORS:
Jessie Brown is the Associate General Counsel for the American Council on Education. Prior to joining
ACE, Jessie served as the National Center for Philanthropy and Law fellow at New York
University and worked as a litigation associate at a large law firm. She graduated from Harvard Law
School and earned her bachelor’s degree from Brown University.
Will Versfelt is an Assistant Counsel at SUNY Downstate Medical Center. Before joining SUNY's Office
of General Counsel, Will attended William & Mary Law School and earned his bachelor's degree from
Cornell University.
ENDNOTES:
[] See, e.g., Recommended Immunization Schedule for Persons Aged 0 through 18 years, CTRS. FOR
DISEASE CONTROL AND PREVENTION (Jan. 1, 2014)
http://www.cdc.gov/vaccines/schedules/downloads/child/0-18yrs-schedule.pdf.
[2] See Steve P. Calindrillo, Vanishing Vaccinations: Why Are So Many Americans Opting Out of
Vaccinating their Children?, 37 U. MICH. J.L. REFORM 353, 365–367 (2004) (opening with the claim that
vaccines are “one of the greatest public health achievements in history”); CTRS. FOR DISEASE CONTROL &
PREVENTION, U.S. DEP’T OF HEALTH & HUMAN SERVS., Impact of Vaccines Universally Recommended for
Children-United States, 1900-1998, 281 J. AM. MED. ASS’N 1482, 1482-83 (1999).
[3] MASS. GEN. LAWS ANN. ch. 76 § 15 (historical and statutory notes, St. 1852 c. 414 § 2).
[4] 197 U.S. 11 (1905).
[5] Id. at 12, 39.
[6] Id. at 25.
[7] Id. at 26.
[8] 260 U.S. 174 (1922).
[9] Id. at 175–77.
[10] Id. at 176–77.
[11] States with Religious and Philosophical Exemptions from School Immunization Requirements, NAT’L.
CONFERENCE OF STATE LEGISLATURES (Dec. 2012), http://www.ncsl.org/research/health/schoolimmunization-exemption-state-laws.aspx/. The precise requirements vary by state, but all are based, at
least in part, on the annual vaccination schedules published by the Centers for Disease Control and
Prevention. See, National Center for Immunization and Respiratory Diseases, Immunization Schedules,
CTRS. FOR DISEASE CONTROL AND PREVENTION (Jan. 31, 2014), http://www.cdc.gov/vaccines/schedules/
(providing links to immunization schedules based on age group).
[12] For a full listing of exemption statutes, see States with Religious and Philosophical Exemptions from
School Immunization Requirements, supra note Error! Bookmark not defined..
[13] Id.
[14] VA. CODE ANN. § 23-7.5(A).
[15] Id. § 23-75(C).
[16] Id.
[17] Id. § 23-75(F).
[18] Michigan’s statute is similarly lax, although it applies to both public and private institutions of higher
education. MICH. COMP. LAWS ANN. § 333.9205a.
[19] 35 PA. STAT. ANN. § 633.3.
[20] Id. § 633.3(a).
[21] Id.
[22] Id. § 633.3(b).
[23] Other states whose statutes provide similarly wide latitude include Colorado, COLO. REV. STAT. ANN. §
23-5-128 (requiring only a vaccine against meningococcal disease, while allowing easy opt outs);
Louisiana, LA. REV. STAT. ANN. § 17:170.1 (2013); and Maine, ME. REV. STAT. tit. 20-A, § 6359 (2013).
[24] N.Y. PUB. HEALTH LAW § 2165(1)(d).
[25] Id. § 2165(9).
[26] Metaphysical questions regarding the distinction between philosophy and religion are beyond the
scope of this Note. The Supreme Court has been more ambitious. See, e.g., U.S. v. Seeger, 380 U.S.
163 (1965) (distinguishing the phrase “religious training and belief” as used in the Universal Military
Training and Service Act from philosophical, sociological, and political views by pointing to the Act’s
inclusion of the phrase, “Supreme Being”).
[27] MINN. STAT. ANN. § 135A.14(2) (amended by 2014 Minn. Sess. Law Serv. Ch. 149).
[28] Id. § 135A.14(3)(b).
[29] TEX. EDUC. CODE ANN. § 51.9192(d). Texas’s regulations also require additional immunizations for
students who are pursuing a course of study in a human or animal health profession. 25 TEX. ADMIN.
CODE § 97.64 (2014).
[30] See, e.g., ARK. CODE ANN. § 6-60-504 (requiring students requesting exemptions to furnish a letter of
exemption from the Department of Health and to complete an annual application process that must
include the filing of a notarized statement, a consent form, and a statement of understanding; and to
complete an educational component on the risks and benefits of vaccination); ILL. ADMIN. CODE tit. 77, §
694.210 (2014) (allowing an exemption for students who provide a written and signed statement detailing
their religious objection to immunization). Not surprisingly, at least on the margins, policies that require
students to provide documentation tend to result in fewer students opting out of vaccine programs. See
Jennifer S. Rota et al., Processes for Obtaining Nonmedical Exemptions to State Immunization Laws, 91
AM. J. PUB. HEALTH 645, 647 (2001) (noting that none of the states classified in the category with the most
complex exemption documenting procedures had high exemption rates, while those states classified in
the lower-complexity categories were more likely to have high exemption rates).
[31] See W. VA. CODE ANN. § 16-3-4; MISS. CODE. ANN. § 41-23-37. The only possible exemption in these
states is medical. See W. VA. CODE ANN. § 16-3-4 (requiring a certificate from a physician stating that
immunization is “impossible or improper” for a student to receive an exemption); MISS. CODE. ANN. § 4123-37 (allowing exemptions only in cases where the student can produce a “certificate of exemption from
vaccination for medical reasons” from a licensed physician and a local health officer concludes that the
exemption “will not cause undue risk to the community”).
[32] E.g., Summary of College and Vocational Institution Recommendations for Immunization, W EST
VIRGINIA DEPARTMENT OF HEALTH & HUMAN RESOURCES (last visited May 30, 2014),
http://www.dhhr.wv.gov/oeps/immunization/requirements/Documents/College_Entry_Recommendations.p
df.
[33] U.S. CONST. amend. I. While public universities have the same constitutional restrictions regarding
burdens on religion as all other public entities, there is no federal statutory provision barring religious
discrimination in private higher education. As such, private universities must deal entirely with state law in
this area.
[34] 672 F.Supp. 81, 90 (E.D.N.Y. 1987).
[35] Id. at 87.
[36] Id. at 90.
[37] Id.
[38] Id. at 89 (citing the three-pronged test set forth by Lemon v. Kurtzman, 403 U.S. 602 (1971)).
[39] Id. at 94.
[40] See N.Y. PUB. HEALTH LAW § 2165(9). A more recent case underscored that even if an objector in
New York genuinely and sincerely opposes vaccination, his or her belief must be “religious” in nature to
take advantage of the exemption. Caviezel v. Great Neck Public Schools, 701 F.Supp.2d 414, 428
(E.D.N.Y. 2010).
[41] Perhaps in response to statutes that require documentation to support students’ religious or
philosophical objections, some online outlets provide quick and easy “affidavits.” See, e.g.,
http://www.daghettotymz.com/rkyvz/articles/vaccines/VaccineAffidavit.html.;
http://www.vaclib.org/sites/VaccineExemption.html;
http://www.dphhs.mt.gov/publichealth/immunization/documents/HES_113_religious_exemp.pdf (Montana
only).
[42] See Sherr, 672 F.Supp. at 90 (citing Sherbert v. Verner, 374 U.S. 398 (1963).
[43] Unfortunately, state statutes that address immunizations for institutions of higher learning do not
always contemplate these types of clinical programs.
[44] See School Bd. of Nassau Cnty. v. Arline, 480 U.S. 273, 288 (1987) (noting that, in the context of the
employment of a person handicapped with a contagious disease, any inquiry of qualification should
include reasonable medical judgments about the nature of the risk, the duration of the risk, the severity of
the risk, and the probability the disease might be transmitted and cause varying degrees of harm).
[45] See, e.g., Student Handbook, UNIVERSITY OF W ISCONSIN SCHOOL OF MEDICINE AND PUBLIC HEALTH,
available at http://www.med.wisc.edu/files/smph/docs/education/md/student_resources/student-
handbook.pdf (reminding students that even if a medical or religious exemption is approved, the school
“cannot guarantee that [its] affiliated hospitals will allow the student to participate at the hospital in their
medical education”).
[46] Pub. L. No. 101–336, 104 Stat. 327 (1990) (codified at 42 U.S.C. §§ 12101-12213 (2006)).
[47] Pub. L. No. 93-112, 87 Stat. 394 (1973) (codified at 29 U.S.C. § 794 (2012)).
[48] 42 U.S.C. § 12102(1)(A).
[49] See 28 C.F.R. § 36.208 (noting that in determining whether an individual poses a direct threat to the
health or safety of others, a public accommodation must make an individualized assessment, relying on
current medical knowledge or the best available objective evidence, to ascertain: the nature, duration,
and severity of the risk, the probability that injury will occur, and whether reasonable modifications of
policies, practices, or procedures will mitigate the risk).
[50] See Letter from Jocelyn Samuels, Principal Deputy Assistant Attorney General, Civil Rights Division,
U.S. Dep’t. of Justice, et al., to Schools of Medicine, Schools of Dentistry, Schools of Nursing, and other
Health-Related Schools (“Colleagues”) Joint “Dear Colleague” Letter, 2-3 (June 12, 2013), available at
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201306-504-title-vi.pdf.
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