Could Virginia's public colleges and universities require students to be vaccinated against COVID-19 to attend in-person classes during the pandemic?

Subject

As part of their oversight and management authority set out in Title 23.1 of the Code of Virginia, the governing boards of Virginia's institutions of higher education have the authority to condition in-person attendance on the receipt of an approved COVID-19 vaccine.

Plain-English summary

In April 2021, with vaccine supply ramping up and college campuses planning for fall, Delegate Mark Keam asked then-Attorney General Mark Herring whether Virginia's public colleges and universities could require students to be vaccinated against COVID-19 as a condition of in-person attendance. The vaccines were then operating under Emergency Use Authorization (EUA) rather than full FDA approval, which raised a complicating legal question.

The AG concluded that the boards of visitors of Virginia's public colleges and universities had that authority. The General Assembly had granted those boards broad power under Title 23.1 to "make regulations and policies concerning the institution," including policies that promote campus safety. The AG cited DiGiacinto v. Rector & Visitors of George Mason Univ., 281 Va. 127 (2011), where the Virginia Supreme Court upheld a board of visitors' decision to restrict weapons on campus, as authority for broad implied powers.

The AG also addressed the EUA concern by pointing to EEOC guidance allowing employers to mandate EUA vaccines, and to the fact that EUA COVID-19 tests had already been required by Virginia universities. The opinion concluded that the mandate would have to make reasonable accommodations for medical conditions and religious objections.

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, both COVID-19 vaccines and the legal landscape around public-university vaccine mandates have shifted significantly since 2021. Subsequent statutory changes, federal court decisions, and political developments at the state level may have altered what Virginia's public universities can or must do. Anyone making a present-day decision about a vaccine requirement should research current Virginia statutes (especially Title 23.1 and any later legislative session enactments), current AG opinions, and current case law.

Common questions

What did the Attorney General conclude in 2021?
That under the law as it stood in April 2021, Virginia's public colleges and universities (those organized under Title 23.1) could condition in-person attendance on COVID-19 vaccination, with accommodations for medical conditions and religious objections.

Where did the authority come from?
From the broad grant of power to boards of visitors in § 23.1-1301(A)(1) to "[m]ake regulations and policies concerning the institution," reinforced by § 23.1-1304(B)(14) on student welfare. The AG also cited the implied power to do whatever is reasonably necessary to effectuate expressly granted powers, Batcheller v. Commonwealth, 176 Va. 109 (1940).

What about the fact that the vaccines were under Emergency Use Authorization at the time?
The AG said the EUA status was not a bar. He pointed to EEOC guidance allowing employers to require EUA vaccines, and to the fact that EUA COVID-19 tests had already been required for entry to Virginia universities.

Did the General Assembly or Health Commissioner already have power to mandate vaccines?
The AG noted that the General Assembly could enact such a law as a valid exercise of police power, and that under Va. Code § 32.1-48 the Health Commissioner had statutory authority to require immediate immunization during a public-health epidemic. The opinion was responding to a different question: whether colleges could impose the requirement themselves in the absence of a state-wide mandate.

Did the opinion require accommodations?
Yes. The AG said any requirement "should be formulated to best effectuate the public health and safety of the respective campuses" and that institutions "should be prepared to provide reasonable accommodations for medical conditions and/or religious objections."

Did this opinion bind private colleges in Virginia?
No. The opinion addressed public institutions under Title 23.1. Private colleges operate under different governance rules.

Does this opinion still describe the law today?
Treat it as historical context. The 2021 opinion was issued in a particular legal and political climate. Vaccine mandate authority, accommodation rules, and the FDA approval status of COVID-19 vaccines have all changed since then, and Virginia AG opinions and statutes may have shifted too. Verify before relying on it.

Background and statutory framework

When this opinion issued in April 2021, Virginia was over a year into the COVID-19 state of emergency declared on March 12, 2020. More than 650,000 cases had been reported in the Commonwealth and 10,691 Virginians had died. Vaccines were widely available; 28.3% of the state's population had been fully vaccinated. The opinion noted that colleges had seen several campus outbreaks over the course of the pandemic.

The legal frame the AG used had three parts:

First, no federal law barred a state university from imposing an EUA-vaccine requirement. The AG looked to EEOC guidance on employer vaccine mandates and to the prior use of EUA-authorized COVID-19 tests as entry requirements at many colleges and universities.

Second, the General Assembly had granted broad implied authority to boards of visitors. § 23.1-1301(A)(1) gives the board power to "[m]ake regulations and policies concerning the institution." § 23.1-1304(B)(14) ties student welfare to board education. The same chapter applies to community colleges via §§ 23.1-2904 and 23.1-2905.

Third, the Virginia Supreme Court had already validated broad use of that power. In DiGiacinto v. Rector & Visitors of George Mason Univ., 281 Va. 127, 136 (2011), the Court upheld a board of visitors' decision to restrict weapons on campus, observing that "[p]arents who send their children to a university have a reasonable expectation that the university will maintain a campus free of foreseeable harm." The same body of authority that supported a weapons restriction supported (in the AG's view) a vaccine requirement.

The AG also flagged the parallel statutory powers of the Commissioner of Health (Va. Code § 32.1-43, § 32.1-48) and the General Assembly's police power to legislate a state-wide mandate under cases like Barsky v. Bd. of Regents, 347 U.S. 442, 449 (1954).

Citations

• Va. Code § 2.2-505 (AG advisory opinions)
• Va. Code § 32.1-43; § 32.1-48 (Health Commissioner immunization authority)
• Va. Code § 23.1-1301 (powers of boards of visitors)
• Va. Code § 23.1-1304(B)(14) (student welfare)
• Va. Code § 23.1-2904; § 23.1-2905 (State Board for Community Colleges)
• Barsky v. Bd. of Regents, 347 U.S. 442 (1954)
• DiGiacinto v. Rector & Visitors of George Mason Univ., 281 Va. 127 (2011)
• Batcheller v. Commonwealth, 176 Va. 109 (1940)
• United States v. Bly, 510 F.3d 453 (4th Cir. 2007)
• Goodreau v. Rector, 116 F. Supp. 2d 694 (W.D. Va. 2000)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/21-030-Keam-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General
Mark R. Herring
Attorney General

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
April 26, 2021
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Mark L. Keam
Member, House of Delegates
Post Office Box 1134
Vienna, Virginia 22183

Dear Delegate Keam:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You have asked whether Virginia's public institutions of higher education, as specified in Title 23.1 of the Code of Virginia, may condition in-person attendance on receipt of an approved COVID-19 vaccine during this time of pandemic.

Background

On March 12, 2020, Virginia declared a state of emergency in response to the COVID-19 pandemic. As of the date of this opinion, that state of emergency continues, despite the recent easing of certain surge mitigation measures that were in place as cases peaked over the winter. More than 650,000 cases of COVID-19 have been reported within the Commonwealth and 10,691 Virginians have died as a result. The virus readily spreads through respiratory droplets, particularly where individuals are indoors, in close contact, and in congregate settings.

More than 5.8 million doses of the COVID-19 vaccine have already been administered in Virginia, with 28.3% of the population fully vaccinated and 42.5% receiving at least one dose. Individuals aged sixteen and over are currently eligible to be vaccinated and there is sufficient supply nationwide for those seeking the vaccine to receive it prior to the start of the next academic year.

Discussion and Relevant Laws

1. The Health Commissioner and General Assembly Possess the Power to Impose a Vaccine Requirement for All Residents.

There is no question that the General Assembly could enact a statute requiring the COVID-19 vaccine for in-person school attendance as a valid exercise of the Commonwealth's police powers. In addition, § 32.1-48 of the Code of Virginia currently grants the Commissioner of Health the power of "requiring immediate immunization of all persons in case of an epidemic of any disease of public health importance for which a vaccine exists other than a person to whose health the administration of a vaccine would be detrimental as certified in writing by a physician licensed to practice medicine in this Commonwealth." As a previous opinion of this Office explained, the "Health Commissioner has the authority, pursuant to § 32.1-43, 'to require quarantine, vaccination or treatment of any individual when he determines any such measure to be necessary to control the spread of any disease of public health importance.'" In the absence of such a mandate, your question stems from the need for colleges and universities to protect their students and employees due to the congregate settings of their campuses.

2. Colleges and Universities May Condition the Attendance of Certain In-Person Events on Having Received an Approved COVID-19 Vaccine.

In my opinion, Virginia's colleges and universities may take steps to protect the health and welfare of their students by conditioning attendance in various activities or settings on the receipt of an approved COVID-19 vaccine.

a. No federal law bars Virginia colleges and universities from imposing such a requirement.

With regard to students that attend one of Virginia's state colleges or universities, it remains up to the individual institutions to determine whether requiring students to obtain the COVID-19 vaccination has a real or substantial relation to protecting public health and safety on their campus. Colleges have seen several outbreaks over the course of the pandemic due to the nature of school campuses. In my opinion, a COVID-19 vaccine mandate by a state college or university would be reasonable to control COVID-19 and prevent a campus outbreak.

Currently, there is no federal guidance on the Emergency Use Authorization (EUA) of the COVID-19 vaccine specifically related to colleges and universities. However, the Equal Employment Opportunity Commission (EEOC) has provided detailed guidance that suggests employers can mandate the vaccine for employees even though the vaccine is currently only under an EUA. Additionally, the COVID-19 tests that many colleges and universities have required were authorized under an EUA.

b. An institution's board of visitors may require vaccinations as a condition of in-person attendance.

The General Assembly has vested the various boards of visitors with broad specific and implied discretion in their management of the state's colleges and universities. "[P]arents who send their children to a university have a reasonable expectation that the university will maintain a campus free of foreseeable harm." The Supreme Court of Virginia has recognized that Virginia's higher education institutions have broad authority to implement "rules and regulations includ[ing] policies that promote safety" on their campuses and within residence facilities.

The governing boards of Virginia's higher education institutions are granted the power to set policies and regulations for their respective schools, and are charged with protecting the welfare of their students. In particular, § 23.1-1301(A)(1) grants "[t]he board of visitors of each baccalaureate public institution of higher education or its designee" the power to "[m]ake regulations and policies concerning the institution." Similarly, §§ 23.1-2904 and -2905 grants all the same duties and powers "of governing boards of public institutions of higher education set forth in Chapter 13 (§ 23.1-1300 et seq.)" to the State Board for Community Colleges. Those powers, like corporate powers, consist not only of the ability to address matters that are expressly enumerated in the statute, but also grants the boards of visitors "the implied power to do whatever is reasonably necessary to effectuate the powers expressly granted."

Virginia courts have regularly upheld the General Assembly's broad grant of discretion to the various boards of visitors. For example, the Supreme Court of Virginia rejected a challenge to the decision of the Board of Visitors at George Mason University to restrict weapons on its campus. The Court found that "the General Assembly established 'a corporate body composed of the board of visitors of George Mason University' for the purpose of entrusting to that board the power to direct GMU's affairs," and it specifically noted that "[t]he board of visitors is also tasked with safeguarding the university's property and the people who use it by making 'all needful rules and regulations concerning the University.'"

Accordingly, I conclude that Virginia's state institutions of higher education, as defined in Title 23.1 of the Code of Virginia, may determine that in-person attendance in various activities or settings presents a risk to students or others, and that it may condition attendance upon being vaccinated. While it is my belief that our public colleges and universities may condition in-person attendance on receipt of an approved COVID-19 vaccine during this time of pandemic, it is not without complications and our public colleges and universities should be prepared to provide reasonable accommodations for medical conditions and/or religious objections. Any requirement of an approved COVID-19 vaccine during the pandemic should be formulated to best effectuate the public health and safety of the respective campuses.

Conclusion

Accordingly, for the reasons stated, Virginia's state institutions of higher education, as defined in Title 23.1 of the Code of Virginia, may condition in-person attendance on receipt of an approved COVID-19 vaccine during this time of pandemic.

With kindest regards I am,
Very truly yours,

Mark R. Herring
Attorney General