Public Universities Can’t Mandate COVID-19 Vaccines: Virginia Attorney General

A medical worker prepares the Pfizer-BioNTech COVID-19 vaccine booster in Hartford, Conn., on Jan. 6, 2022. Joseph Prezioso/AFP via Getty Images

New Virginia Attorney General Jason Miyares wrote in a legal opinion that public universities in the commonwealth cannot mandate students to receive COVID-19 vaccines or booster doses as a requirement to attend in-person classes.

“Although the General Assembly specifically authorized public institutions of higher education to assist the Department of Health and local health departments in the administration of the COVID-19 vaccine, the legislation did not grant such institutions power to impose vaccine requirements,” Miyares wrote in his opinion, which was requested by new Gov. Glenn Youngkin, a Republican.

The attorney general cited a Virginia state law that stipulates what vaccines students at public universities must receive before attending. Virginia schools require students to be vaccinated against diseases like tetanus and diphtheria, but Miyares noted in his opinion that such requirements are passed by Virginia’s General Assembly, whereas COVID-19 vaccine mandates were not.

“‘There is no question that the General Assembly could enact a statute requiring the COVID-19 vaccine for in-person school attendance,’” he wrote. “As of this writing, it has not done so.”

The state of emergency that was created by the COVID-19 pandemic didn’t expend the powers of entities “that are expressly subject to the control of the General Assembly,” Miyares said. He also wrote: “Notably, the authority to require immunization during a public health emergency belongs to the State Health Commissioner.”

Several state universities in Virginia previously mandated vaccination as a requirement to go to in-person classes, including James Madison University, George Mason University, Virginia Tech University, and the University of Virginia.

The University of Virginia and George Mason University recently confirmed they would roll back employee vaccine mandates for employees. Other universities such as Virginia Tech, James Madison University, Virginia Commonwealth University, the College of William & Mary, and the University of Mary Washington have done the same, according to the Washington Post, which reported at the time vaccine mandates for students on campus remain in place.

It came after Youngkin in early January issued executive orders (pdf) prohibiting state agencies, including colleges and universities, from requiring COVID-19 vaccines as a condition for employment.

“We will continue to ensure that every Virginian has access to the information necessary to make an informed decision about the COVID-19 vaccination and ensure all who desire a vaccination can obtain one,” said Youngkin in a memo. “However, the requirement of state employees to receive the COVID-19 vaccination and disclose their vaccination status or engage in mandatory testing is harmful to their individual freedoms and personal privacy.”

On Friday, meanwhile, Miyares said in an accompanying news release that he has received a COVID-19 vaccine and booster shot, and he also encourages people to receive them.

But, his news release stipulated that “nowhere in the Code of Virginia does the law say that Virginia public institutions can require vaccinations as a condition of enrollment or in-person attendance.”