By Kristin Leaptrott.
Over the past several weeks, students have returned to university campuses across the country after a year and a half of virtual (or at least partially virtual) instruction. For many of them, the joy of in-person learning has come at a price: proof of vaccination against COVID-19. Colleges and universities in 39 states and Washington, D.C. have imposed COVID-19 vaccine mandates on students attending classes this fall; Arizona is not one of those states. However, with the recent full FDA approval of Pfizer’s COVID-19 vaccine, some Arizona students may be wondering whether a mandate is in their future.
IN-PERSON LEARNING IN THE TIME OF COVID-19: KEEPING STUDENTS SAFE (OR TRYING TO)
On June 14, 2021, Arizona State University (ASU) announced that it was strongly recommending that all ASU students be vaccinated against COVID-19 in anticipation of their return to in-person instruction this fall. The announcement discussed ASU’s intent to require any student who chose not to be vaccinated to wear a mask (at this time, masks were optional for fully vaccinated students) and be tested for COVID-19 twice-weekly. Arizona Governor Doug Ducey swiftly issued Executive Order 2021-15, “Protecting Student Access to Higher Education,” on June 15, 2021. The order expressly prohibited the Arizona Board of Regents and all Arizona public universities from mandating that students obtain a COVID-19 vaccine and from placing any conditions on attendance based on a person’s choice not to obtain a COVID-19 vaccine. This order was quickly added to an existing appropriations bill which was signed into law on June 30, 2021. The provisions in this bill relating to vaccine mandates go into effect on September 29. Governor Ducey’s Executive Order remains in effect until then.
While Governor Ducey’s executive order noted that no COVID-19 vaccines had yet received full FDA approval, neither the order itself nor the corresponding law passed by the legislature predicated the ban on the vaccine’s lack of full FDA approval. So now that Pfizer’s vaccine received approval, Arizona students hoping for a vaccine mandate should probably not get their hopes up. However, it is still worth asking, does the Governor even have the power to ban vaccine mandates?
A STATE OF EMERGENCY
On March 11, 2020, Governor Doug Ducey issued a Declaration of Emergency in response to the COVID-19 pandemic. Arizona law vests the Governor and the Arizona Department of Health Services with certain powers during a State of Emergency in which there is an imminent threat to public health caused by a pandemic. However, the law grants the Governor the power to impose a vaccine mandate only if there is a threat of “smallpox, plague, viral hemorrhagic fevers” or a “highly contagious and highly fatal” disease with transmission characteristics similar to smallpox. Governor Ducey has thus far refused to invoke this power, consistently stating in his executive orders that COVID-19, while highly contagious, does not qualify as a disease for which he can impose mandatory vaccinations pursuant to these emergency powers.
While this statute addresses imposing vaccine mandates, not banning them, this is not the only source of power granted to the Governor during a state of emergency. Arizona law vests the governor with “complete authority over all agencies of the state government” while a State of Emergency is in place. Here is where we (supposedly) find the Governor’s power to issue Executive Order 2021-15: Arizona public universities are governed by a state agency, the Arizona Board of Regents.
In Texas, Governor Greg Abbott passed an Executive Order similar to the one issued by Governor Ducey. The Texas Supreme Court may soon weigh in on whether a Texas law granting Governor Abbott broad emergency powers actually gives him the power to ban government entities from imposing vaccine mandates. The Texas laws relied on by Governor Abbott in issuing his vaccine mandate ban are similar to those relied upon by Governor Ducey, so the Texas Supreme Court’s decision may shed some light on the legitimacy of Governor Ducey’s actions.
However, unlike Texas, the Arizona legislature has already codified Governor Ducey’s vaccine mandate ban (although Texas legislators are currently attempting to cure this deficiency). While Governor Ducey’s power to stop Arizona public universities from imposing vaccine mandates may not be completely clear, the Arizona legislature undoubtedly possesses this power. The Arizona Constitution firmly vests the legislature with the power to establish, regulate, and maintain the Arizona public school system. This could be why, unlike in Texas, Governor Ducey’s executive order has not been aggressively challenged: the ultimate survival of the vaccine mandate ban in Arizona does not depend on the validity of this executive order, but on the validity of the new law.
THE ARIZONA SCHOOL BOARD ASSOCIATION FIGHTS BACK
The Arizona School Board Association recently sued the State of Arizona to stop the enforcement of the bill that codified Governor Ducey’s executive order on the grounds that it violates provisions of the Arizona Constitution that limit what the Arizona legislature can include in a single bill. Generally, any bill passed by the Arizona Legislature must cover only one subject, and the subject of each bill must be expressed in the title. This is known as the “single subject rule.” This bill might violate this provision, but it remains to be seen how the courts will rule.
The FDA’s approval of Pfizer’s COVID-19 vaccine was welcome news for many. Full approval will surely encourage those who have been skeptical of emergency-use vaccines to get vaccinated. However, a vaccine mandate is probably not on the horizon for Arizona public universities. While a State of Emergency is in place, Arizona law grants the Governor the power to control Arizona’s state agencies, and this includes the Arizona Board of Regents. Additionally, Arizona’s new law is currently being challenged in court, but lawsuits take time. For now, the vaccine mandate ban seems firmly in place.