COVID mandates falling in schools due to political flips, courts, fear of electoral wrath

Virginia public universities end vaccine and boosting requirements, but some downplay political factors.

Published: February 7, 2022 5:43pm

Updated: February 7, 2022 10:35pm

The writing is on the wall for COVID-19 mandates in educational settings in several jurisdictions, prompted by court rulings, political flips and the perception of pending electoral doom.

New Jersey Gov. Phil Murphy, who said he "wasn’t thinking of the Bill of Rights" when he issued unilateral lockdown orders early in the pandemic, announced Monday he would end the state's school mask mandate in a month. 

Pennsylvania Gov. Tom Wolf, also a Democrat, ended his state's mandate last month, and Democrat-led Connecticut and New York are considering letting their expiring mandates lapse.

They may be afraid of becoming the next Virginia, where Republicans swept high office largely on the basis of parental outrage at public school policies on COVID and curriculum.

Four Virginia public universities dropped vaccine and booster mandates for students following an advisory opinion from new Attorney General Jason Miyares to Gov. Glenn Youngkin, dated Jan. 26. Miyares made it public two days later

While not legally binding, it echoes the reasoning in the U.S. Supreme Court's ruling against the Biden administration's COVID vaccine mandate for large employers, which cited the failure of Congress to authorize such mandates even as lawmakers approved other COVID-related legislation.

Miyares overturned his predecessor's opinion that Virginia statutes gave universities "implied discretion" to require COVID vaccines, ignoring the more specific statute expressly requiring certain immunizations to attend the institutions. The General Assembly has not amended that statute among its many other changes during the pandemic, he said.

George Mason University apparently kept the community in the dark for three days about revising its policy in response to Miyares.

The earlier version said GMU "requires vaccines for students and strongly encourages vaccines for employees," the latter the result of Youngkin's Jan. 15 executive order rescinding the state employee vaccine mandate. 

It gave students until Feb. 15 to demonstrate proof of receiving boosters or face discipline, including expulsion. The new version, by contrast, "strongly encourages" vaccination for both groups. 

While the Washington Post reported the evening of Jan. 28 that GMU said it changed the policy, the newspaper didn't say how the university conveyed the change. Various archives show the policy was formally revised between Jan. 24 and Jan. 29.

ABC 7 News publicized the change Jan. 31, followed hours later by an email from President Gregory Washington to the GMU community.

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He credited GMU's panoply of COVID mandates for "some of the lowest" viral transmission rates in the nation. Thanks to its high vaccination rate, "continued decline of the Omicron variant," Youngkin's orders and the Miyares opinion, GMU would go vaccine- and booster-optional, Washington said.

The New Civil Liberties Alliance (NCLA), whose natural immunity lawsuit prompted GMU to issue Professor Todd Zywicki a medical exemption from its vaccine mandate, took credit for forcing its hand in removing booster requirements for students.

The public interest law firm warned the university Jan. 28 that it was "prepared to file appropriate legal action" on behalf of two vaccinated students in their 30s against the booster requirement, "which cannot be justified by logic, science, or medical ethics," especially since the Omicron variant became dominant.

One of those students, Robert Fellner, told Just the News the policy was unchanged when he looked Jan. 27 but he noticed it had changed hours after NCLA's Jan. 28 warning letter, sent around 3 p.m. GMU has not responded to queries on when the change was made and why it was not announced for three days.

The University of Virginia claimed Jan. 31 that it had already decided "early last week" — before the Miyares opinion — that it would not "disenroll" students who had not been boosted. The attorney general's opinion merits "careful consideration," the university said, but "the issue is moot" for now at the so-called public Ivy, because "over 99%" of students have been vaccinated and boosted.

Virginia Tech and the University of Mary Washington dropped their mandates the same day, given that their policies were based on the opinion Miyares revoked, but UMW warned that students and employees without a booster record would be forced to quarantine for "exposure" to COVID.

NCLA is waging another legal battle in solidly progressive Northern Virginia over the issue of quarantine policy distinctions. 

It sued Fairfax County Public Schools on behalf of an unvaccinated student with natural immunity in December after she was forced into 10-day quarantine due to "potential close contacts" with COVID-positive individuals at school. 

NCLA sought a temporary restraining order (TRO) last week after she and her unvaccinated brother, who also has natural immunity, were forced into another quarantine on the same basis. Neither has shown symptoms or tested positive. By contrast, the district exempts asymptomatic vaccinated students from quarantine regardless of when they were vaccinated. 

Litigation counsel Jenin Younes told Just the News Monday that NCLA withdrew the TRO because the siblings are back in school, apparently because the quarantine ended before a court decision.

Courts elsewhere have sent authorities reeling. An Illinois state judge Friday blocked enforcement of Democratic Gov. J.B. Pritzker's emergency orders for COVID mandates in schools on the basis that they "bypassed" statutory rights, an "evil" that "the law was intended to constrain." 

Authorities must give the students and unvaccinated employees suing the state "due process" before making them mask up, test for COVID or isolate as a "close contact" of a person with a probable infection, Sangamon County Circuit Court Judge Raylene Grischow ruled.

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