Endangering others is not a personal freedom. That’s why vaccine mandates are constitutional
On Aug. 16, my law school — University of California, Berkeley School of Law — began in-person classes for the first time in 17 months. Every student, instructor and staff member had to be vaccinated unless there was a medical or religious exemption.
Statistics show almost 100% compliance with the vaccination policy, with very few individuals on campus having received exemptions. Every person in the building must wear a mask at all times except when in a private office.
Similar requirements are being imposed at colleges and universities across the country. Sadly, though, politics continues to play a role in whether vaccines are being mandated. As of July, of the more than 600 colleges requiring vaccinations, 90% are in states that voted for Biden.
One of the greatest tragedies of the pandemic is how basic safety measures, like wearing a mask and being vaccinated, have been politicized.
There is no doubt that vaccine mandates on college campuses are constitutional. In 1905, in Jacobson v. Massachusetts, the Supreme Court held that the government can require that people be inoculated to stop the spread of smallpox. All 50 states have long required that students be vaccinated against many communicable diseases. Some of these laws have no exception for religious beliefs or conscience objections to vaccinations.
Without exception, every such law has been upheld by the courts.
Yet some students are trying to challenge requirements for being vaccinated against COVID-19. These suits have little chance of success and should be quickly dismissed. One of the first lawsuits was brought by eight students at Indiana University. The students sought an injunction, objecting that the requirement for vaccinations violated their constitutional rights.
The federal district court ruled against the students, as did the federal court of appeals.
The appellate court stated: “Each university may decide what is necessary to keep other students safe in a congregate setting. Health exams and vaccinations against other diseases (measles, mumps, rubella, diphtheria, tetanus, pertussis, varicella, meningitis, influenza, and more) are common requirements of higher education. Vaccination protects not only the vaccinated persons but also those who come in contact with them, and at a university close contact is inevitable.”
“A university will have trouble operating when each student fears that everyone else may be spreading disease. Few people want to return to remote education and we do not think that the Constitution forces the distance-learning approach on a university that believes vaccination (or masks and frequent testing of the unvaccinated) will make in-person operations safe enough.”
Likewise, there’s no constitutional right to refuse to wear a mask. I find it hard to teach with a mask on and wearing one all day is uncomfortable. But there’s good reason to believe that masks lessen the chance of spreading COVID-19.
Arguments against mandatory vaccinations and the wearing of masks are phrased in terms of individual freedom. But these claims make a fundamental mistake: Personal freedom does not include the right to endanger others. The law respects the right of competent adults to make medical decisions when it concerns only their health, but it’s quite different when it comes to communicable diseases. The government has always had the power to take the necessary steps to keep people from infecting others, including quarantines and inoculations.
It’s wonderful to be back in the classroom with students after more than a year of online instruction. At the same time, our faculty, staff and students are concerned about the highly contagious delta variant and the dangers of COVID-19.
College administrators must do all they can to protect health and safety while having in-person education. This makes vaccination and mask requirements not only sensible, but essential.