With Biden mandates looming, what can colleges do in states that limit vaccine requirements?

Legal battles loom in conservative states that are resisting President Joe Biden’s sweeping new vaccine mandates. They dictate that those who work for federal contractors and at private businesses with more than 100 employees must be inoculated against the coronavirus.

Some colleges have begun to rework their own requirements to comply with these policies. But others are located in states that have outright banned vaccine mandates at employers or colleges, leaving institutions stuck between conflicting government directives. 

The outcome of potential court cases will matter for these institutions and their employees. But until they all shake out, a more important question might be who has the most leverage over colleges.

“The question becomes: Who applies the strongest amount of pressure in the shortest amount of time?” said Michael LeRoy, a law and labor professor at the University of Illinois. 

Colleges’ responses vary so far

Biden in September announced the expansive new federal requirements, which also targeted federal government employees and healthcare workers at facilities receiving Medicare or Medicaid money. 

Employees at federal contractors, which encompass many colleges, must be fully vaccinated by Dec. 8. This deadline is fast approaching because approved two-shot vaccines must be given weeks apart. 

The administration is still formulating its mandate on private businesses, which have the option to install a weekly testing regimen instead.

In response to these rules, several colleges issued vaccine requirements for their employees, such as Penn State University, which holds about 1,000 federal contracts valued at more than $500 million at its flagship campus. More recently, the governing board for Mississippi’s public colleges also voted to require the shots for most employees, a reversal from an earlier ban on vaccine mandates. Mississippi’s public institutions have at least $271 million worth of government contracts.

For some colleges, following Biden’s edicts is not so simple. They are wrestling with meeting federal requirements while their home states, such as Texas and Montana, have rules in place prohibiting vaccine mandates.

Generally, federal rules preempt state law, as long as the federal government operates within its authority, said Audrey Anderson, an attorney with Bass, Berry & Sims in Nashville and a former general counsel of Vanderbilt University.

While colleges must weigh state law in these cases, they will be reluctant to jeopardize their federal contracts, which often total millions of dollars, Anderson said. Those who don’t follow the mandate risk the government not wanting to contract with them anymore, she said.

The University of Wisconsin System cited fears of losing millions of dollars worth of government contracts when it said Wednesday it will follow the mandate. 

In Texas, Gov. Greg Abbott, a Republican, this month issued an executive order barring any entity in the state from enforcing vaccine mandates. Colleges are still figuring out how to respond.

The University of Texas System seems to be attempting to cater to both state and federal demands. 

UT institutions maintain thousands of federal contracts that represent several billions of dollars in investments, system spokesperson Karen Alder said in an email. 

The system “will endeavor to comply with federal vaccine requirements for specific, covered individuals to protect these investments in our state,” Alder said, adding that it will ensure medical and religious exemptions are covered and “make every effort” to accommodate employees’ personal situations. 

A spokesperson for the Texas A&M University System said in an email it holds about 500 federal contracts worth nearly $2 billion, and it will be sending guidance to employees “in coming days.”

Similar circumstances could arise in Montana, which earlier this year became the first and only state where legislators passed a law banning vaccination requirements among all employers. A spokesperson for The Montana University System did not respond to a request for comment. 

And in Alabama, Republican Gov. Kay Ivey published her own executive order directing state officials not to punish employers and individuals that eschew Biden’s policies. 

This order is less stringent than Texas’ or Montana’s approach, as colleges still have the option to impose vaccine mandates. Auburn University, one of the state’s public flagship institutions, reported it wouldn’t alter its newly announced vaccine plan that falls in line with the White House’s directive, according to a local media report. But Troy University pointed to Ivey’s executive order as a reason it will not enforce the federal mandate while also saying it doesn’t hold applicable federal contracts.

What’s ahead for colleges caught in the middle?

Colleges will be reviewing the fine print of their contracts, LeRoy said. But the federal government can’t come in and terminate them summarily, he said.

“Schools have due process rights, just like individuals,” LeRoy said. “And it’s not clear what the sanction would be from the Biden administration, although they do have discretion to slow down the funding.”

How states would enforce their rules against vaccine mandates is less clear. While public institutions receive state appropriations, LeRoy said he’s not aware of any established mechanism that allows governors to claw back funding. 

“Republican governors create authority out of thin air with draconian measures,” LeRoy said. “If this were to follow suit with other draconian measures, it could take the form of an impoundment order for state funding.” 

He likened this possibility to Florida Gov. Ron DeSantis in August promising to withhold the salary of K-12 school leaders who defied the state’s no-mask rule. DeSantis eventually backed down from this threat.

Anderson noted some government-contracted institutions, like the University of Texas System, are attempting to pick out which employees might be exempt from Biden’s order because they don’t work on federal contracts. But as outlined in a brief from the American Council on Education, the order is broad enough that it affects part- and full-time workers with no direct connection to a contract.

“It will be challenging, and perhaps impossible, for colleges and universities with covered federal contracts that are performed on campus to apply the requirements to less than their entire campus,” the brief reads. 

Anderson was sympathetic toward institutions in red states that are stuck in the midst of a political battle. 

“It’s putting them in the middle, when they’re already trying to keep their campuses safe from COVID,” she said.

Ultimately, legal skirmishes could likely be avoided if colleges saw widespread vaccine uptake among employees, LeRoy said. The Biden administration doesn’t want to be punitive but rather encourage vaccination, he said.

“If a school is already in compliance, what’s the point of having a public spat with a governor?” LeRoy said.

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