The Legal Outlook for COVID on HBCU Campuses This Fall

The Chronicle of Higher Education has a new database outlining the number of colleges and universities nationwide now requiring covid-19 vaccines for students and employees. The number is just under 650 campuses with vaccination mandates, and the database even tracks where the schools are geographically located and how their states voted in the 2020 presidential election.

Blue and red shadiness aside, the tool gives people a view of how institutions are approaching a fall semester where campuses are likely to be wide open, prospects of shutting them down are slimmer than this time last year, and the politics around vaccines are growing as fast as infection rates for the covid delta variant.

Attorneys all over the country and especially in the south are eager to find clients who want to challenge the legality of forced vaccinations to attend school. Covid-related damages were a hotspot for legal action in 2020 before a vaccine was available, and now mandates for workers and customers to be vaccinated presents the same lucrative opportunities through litigation.

A handful of private HBCUs, including the Atlanta University Center Consortium schools, Hampton University, and the historically Black medical schools have announced such requirements. The private institutions have a lot more latitude to make students and employees comply with such orders because, at present, the federal government will not tie their eligibility for federal funding to vaccination standards.

But public institutions, particularly in the south, face a different set of rules under their governors and state lawmakers. To prove a point about personal freedom and accountability, many states passed laws prohibiting requirements for vaccines and even masks.

Even as the variant is requiring some elected officials to walk back such decisions, lawyers may still be seeking out individuals and groups of people willing to bring action against institutions for infringing on personal health decisions. And there may be legal support favoring colleges and universities. From the Associated Press:

Opponents of student vaccine requirements have gone to federal court challenging mandates issued by Indiana University, the University of Connecticut and the California State system.

In the first ruling among those cases, a judge last month rejected arguments from eight students that Indiana University’s requirement violated their constitutional rights to “bodily autonomy” by forcing them to receive unwanted medical treatment.

A court in Chicago also denied an appeal from their attorney, James Bopp, who’s been prominent in many conservative political causes. Bopp works with the group America’s Frontline Doctors, which criticizes the COVID-19 vaccine and has been widely discredited for spreading disinformation about the coronavirus and unproven treatments.

Bopp said hundreds of people across the country have contacted him wanting to challenge vaccine mandates. He argues the students he represents, primarily young adults, are at low risk of severe COVID-19 illnesses while facing possible dangers from the vaccine being administered under federal emergency use authorization.

“Why are they being targeted for a vaccine that older people aren’t required to take even though their risk is enormously greater?” he said.

It may be unlikely that HBCU students and faculty would take up such a cause, but it is not impossible. In the south, many attorneys and anti-activists will file claims and cause headaches for general counsel for the sake of doing so. What does that mean for costs associated with discovery, retaining supporting outside counsel, and public relations damage in local or national media?

Vaccine mandates are just one area of concern. Because infection remains very real and very possible in Black communities among unvaccinated neighbors, what are the legal implications for students who will sprint to open HBCU campuses, get sick, and incur significant debt for medical care?

Forget the financial responsibility families and schools may have to share for student health plans, there is a very simple scenario in which an insured student, perhaps a student-athlete, contracts covid, requires significant treatment, and racks up thousands of dollars in outstanding fees. Who is responsible for that? And if the school claims the student has to foot the bill, will there be a waiver in place outlining that prior to the start of the school year?

Is such a waiver legal? If it is, how do the optics of such play out in Black communities? And even with a waiver, can a skilled attorney make a case in a conservative southern courtroom that institutions and the liberal leanings which govern them owe more than they are willing to pay?

Covid has already cost a lot, and even for the HBCUs which made a lot of money during pandemic-soaked 2020, there still isn’t enough in the bank for what may lie ahead.