Virginia colleges can’t mandate COVID-19 vaccinations

In an official advisory opinion, Virginia Attorney General Jason Miyares said he does not believe that public colleges and universities can legally mandate COVID-19 vaccines for students without legislative approval.

The advisory opinion is not legally binding, but is meant to guide public higher education institutions on which policies they can and cannot enforce. Miyares, who took office earlier this month, is taking the opposite approach of his predecessor, former Attorney General Mark Herring, whose office issued an advisory opinion that stated public colleges and universities could legally mandate the vaccine.

According to Miyares’s opinion, public higher education institutions are public corporations that can only exercise powers granted by the General Assembly. He said the General Assembly has listed a series of immunizations that are required for attendance, including measles, mumps, tetanus and others, but has not listed the COVID-19 vaccine in its list of required vaccinations.

Although the college and university boards are given the general authority to make regulations and policies, Miyares said when there is a specific statute that is more controlling, the specific statute takes precedence over the broad statute. He also said a state of emergency does not grant expanded powers to entities expressly controlled by the General Assembly.

“I conclude that, absent specific authority conferred by the General Assembly, public institutions of higher education in Virginia may not require vaccination against COVID19 as a general condition of students’ enrollment or in-person attendance,” Miyares concluded.

Miyares said the new advisory opinion supersedes the prior opinion.

Most Virginia colleges and universities have already imposed COVID-19 vaccine mandates, which had been enforced when the prior advisory opinion was in place. Because the advisory is not legally binding, Miyares’s opinion does not force the institutions to change their policies, but students who are denied admission because they are not vaccinated against COVID-19 could take the institution to court and await a judicial decision.

Several Virginia colleges rescinded their vaccine mandates for employees after Gov. Glenn Youngkin repealed the vaccine mandate for all state employees, which was set under his predecessor, former Gov. Ralph Northam.