Biden struggles to force vaccine mandates on campuses

US universities resisting mandatory Covid vaccination policies are showing limited effects from a Biden administration requirement meant to compel change by conscripting workplaces with large federal contracts.

Nearly a month after President Biden issued an executive order promising a broad use of the government’s economic power to improve vaccination rates, colleges and universities across the country are still struggling to figure out exactly who is covered by it.

But their legal experts in vaccine-sceptical states are advising campus administrators that they appear broadly exempt for various reasons, including the fact that their two biggest areas of federal funding – research grants and student aid – aren’t included in the Biden order’s definition of a federal contract.

Meanwhile universities in about a quarter of US states haven’t been requiring vaccinations on campus – while also amassing some of the nation’s highest Covid infection rates. That position reflects a conservative mindset prizing particular notions of individual freedom over public health that Mr Biden vowed to confront when he issued his order requiring vaccinations at workplaces that “want to do business with the federal government”.

“We’ve been patient,” he said at the time. “But our patience is wearing thin, and your refusal has cost all of us.”

Universities could be seen as highly susceptible to such pressure, as they receive tens of billions of dollars a year in federal support.

Yet, so far, only a handful of institutions appear to have been moved by Mr Biden’s action, which carries a compliance deadline of 8 December. They include Arizona State University, the University of Arizona, and several campuses of Pennsylvania State University, all in states where the 2020 presidential vote was split almost evenly between Mr Biden and Donald Trump.

Penn State had largely avoided vaccine mandates in deference to the position of its Republican state legislature. But in reversing course after Mr Biden’s order, university leaders noted that the US president’s terms applied to any location where someone involved in the relatively limited categories of eligible federal contracting on campus might encounter a non-vaccinated worker.

Other states and their institutions, however, appear determined to stick with their opposition to vaccine mandates. They include Georgia, where the state university system recently issued guidance to its 26 campuses that describes keep points of the Biden order but then leaves the campuses to assess what it requires.

Georgia appears to be expecting “little meaningful mandate effect” of the Biden order, said Matthew Boedy, an associate professor of English at the University of North Georgia who is president of the state conference of the American Association of University Professors.

Short of legal action that forces judicial interpretations, outside experts said they saw legitimate room in the Biden order for disagreement when assessing how to treat instances where a small number of workers involved in an eligible category of federal contracting might cross paths on campus with others.

“This obviously would be very difficult to track,” said Jackie Bendall, the director of contracts and grants administration at the Council on Governmental Relations, the main US higher education association specialising in regulatory matters. “There is a fair amount of ambiguity in the order,” said Christina Lewis, a Boston-based attorney specialising in employment policy at the law firm Goodwin.

The Biden administration also has backed on-campus mask mandates, opening federal civil rights investigations in August in five states that banned their schools from imposing them.

paul.basken@timeshighereducation.com