The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A week ago, I put up a post making the case for freeing the vaccinated from Covid restrictions. Earlier today, as if on cue, the Centers for Disease Control issued new guidelines recommending that vaccinated people can stop masking and social distancing in all but a few highly specialized settings, such as hospitals and planes.
CDC Director Rochelle Walensky stated that the vaccinated not only face very little risk of getting Covid themselves, but also are highly unlikely to transmit to others. As I noted in my post last week, these risks are actually much lower than those we routinely accept during a normal flu season, which very few believe justifies mandatory masking and social distancing. If the normally hypercautious CDC now recommends that ending Covid restrictions for the vaccinated, that's a strong indication that it really is the right way to go.
In this post, I want to take up the implications for universities, and make the case that they should abolish virtually all on-campus Covid restrictions for the vaccinated. Most of my reasoning from last week's post applies to the university setting, as well. Constant masking and social distancing is a severe burden. Ending it for the vaccinated will reduce vaccine hesitancy. And, in some cases, continuing to impose restrictions on the vaccinated violates constitutional rights.
The latter point does not apply to private universities. But it does apply to public ones, in situations where they restrict student activities that involve the exercise of constitutional rights, such as protests, religious gatherings, and others.
in addition to these general considerations there are a number of reasons why the case for liberation is even stronger in the university context than in most other settings.
One key factor is that masking and social distancing reduce the quality of in-person education. Both science and common sense indicate that facial expressions are an important mode of nonverbal communication. And communication is a major part of what education is all about! When I stand in front of a class of masked students, it's often difficult for me to "read" the audience and determine how they are reacting to what I say. Are they attentive or bored? Do they "get" it? Similarly, if the students can't see my face, they cannot read my expression. And, as most experienced public speakers will tell you, facial expression is an important part of how we get our points across to audiences. All of that makes me a less effective teacher. And I suspect I am far from the only professor that applies to.
For both students and faculty, it is often difficult to make yourself heard in a large classroom, while wearing a mask. That is especially true of people with soft voices, including many women. Trying to "solve" this problem by passing around a microphone is cumbersome and time-consuming.
Social distancing rules also impede education. They make it impossible to fully utilize our classroom capacity (which is a serious problem for institutions with limited space). They also severely inhibit a wide range of campus extracurricular activities, many of which have great educational value in their own right. I won't try to argue the point in detail here. But I think the experience of the last year has shown that online education, while far better than nothing, cannot even come close to fully substituting for all the in-person interactions that have been lost.
A second reason why the case for lifting Covid mandates in university settings is stronger than elsewhere is that it's generally easier to tell the difference between the vaccinated and the unvaccinated in the former setting. Almost every student and employee at most colleges is already required to have a university ID. It should not be hard to add a "V" for vaccinated to the IDs of those how have gotten their shots. Then, universities can use the ID system to enforce any remaining Covid rules (assuming, any are justified at all) only against the unvaccinated.
Moreover, hundreds of universities have already adopted vaccination mandates for all students and employees who are going to be on campus in the fall. More are likely to follow suit. Where there is a vaccination mandate, virtually everyone on campus will be vaccinated anyways, and the risk of spread will be even lower.
Along the same lines, most universities have few, if any, people under the age of 12 on campus (the population still not eligible for vaccination). That eliminates the possibility of spreading the disease to children (though spread from vaccinated adults is already highly improbable).
If necessary, it should not be difficult to require proof of vaccination from guest speakers and other visitors to campus who come during the regular academic year. Audiences at graduation and sports events might pose greater challenges. But, if so, they should be dealt with as special cases requiring their own rules. Many such events are, in any case, held outside, where the risk is minimal even for the unvaccinated.
What about students and faculty who cannot get vaccinated for medical reasons, or for whom vaccination doesn't work well (e.g.—because of immunodeficiency)? Such people are a very small proportion of the population. And even they will get a high degree of protection from the fact that nearly everyone around them on campus will be vaccinated (and thus, highly unlikely to spread).
Still, it is possible this group will need some targeted protective measures. Universities already have special accommodations for students and faculty with various types of disabilities (e.g. -those whose hearing or vision is impaired). A similar accommodation model can be used to protect those with special vulnerability to Covid. For example, they could potentially be assigned seats at a distance from the rest of the class, given special personal protective equipment (PPE), or even some combination of both. Such special accommodations for a small minority should be easier and cheaper to administer than imposing masking and social distancing on everyone.
The details of the accommodations might well vary from case to case. I must leave those details to those who have relevant expertise. I wish only to make the point that an accommodation model is far preferable to generalized restrictions for everyone on campus.
The issue of religious objections to vaccination might be a tougher one. But, in practice, it too will probably affect only a tiny minority of people in most university settings. To my knowledge (I welcome correction by experts!), no major religious denomination in the US opposes Covid vaccination on religious grounds. Even Christian Scientists (who object to many other types of modern medical care, do not categorically oppose vaccination.
Some students and university employees might nonetheless object to vaccination on idiosyncratic religious grounds. But there are likely to be very few such cases. In my view, it may be be reasonable to grant such objectors exemption from vaccination rules, so long as they really are few. But there is certainly a case for denying them. I will not try to resolve that issue here, except to point out that it is unlikely to be a major problem.
The US has hundreds of colleges and universities in a variety of different settings. I don't claim that my approach will work for every single institution. Some may well have special circumstances that I am unaware of. Even at otherwise "normal" schools, there might be a few specialized settings that require heightened precautions (most notably, university hospitals, at those schools that have them).
But the points I make should at least be relevant to a very wide range of schools. Even some of the exceptional cases might at least partially drop restrictions.
In a post I wrote almost exactly one year ago, I advocated resumption of in-person university education, but also recognized the need for various restrictions, given the severe threat of Covid. Many universities, including my own, have successfully used such restrictions to enable in-person education to continue safely in these difficult times.
But the arrival of highly effective mass vaccination is a game-changer. The time has come to free vaccinated students, faculty, and staff from Covid restrictions that now only serve to prolong misery and impede the educational process.