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Todd Rokita rips IU, Purdue, but will schools have to change student vaccination plans?
Purdue apparently really did thread the needle for fall semester vaccination requirements. Todd Rokita: Not pleased. But WL rep says AG’s opinion missed point of a law not aimed at Purdue, IU
A pretty significant update from yesterday, after two sets of Indiana House Republicans pressed the governor and the attorney general to weigh in on varying vaccination requirements at Indiana University and Purdue, the state’s biggest schools …
Wednesday afternoon, Indiana Attorney General Todd Rokita issued a nonbinding opinion that IU had crossed the line by requiring students, faculty and staff to show proof that they had a COVID-19 vaccination if they wanted to be on campus for the fall 2021 semester.
Rokita said that the way he interpreted 2021 legislation about limits on “immunization passport,” schools could require vaccinations to participate in school activities, but they couldn’t make students prove they were vaccinated for COVID-19, the way they must by state law for other communicable diseases, including diphtheria, tetanus, measles, mumps, rubella and meningitis.
“Indiana University’s policy clearly runs afoul of state law — and the fundamental liberties and freedoms this legislation was designed to protect,” Rokita posted on Twitter Wednesday afternoon.
As for Purdue, Rokita wrote that the West Lafayette campus – where President Mitch Daniels said students can choose to show they have their COVID-19 shots or agree to be relegated to protocols of random testing dreaded so much during the past school year – “seems to be using a procedural loophole” in the law “by not technically requiring the vaccinated student to produce the immunization record” to prep for the fall semester.
In other words, Daniels and Purdue had threaded the needle in a way IU hadn’t.
(Check this post from Wednesday, before Rokita’s ruling for more about how Daniels got that done: As GOP attacks IU’s vaccine requirement, how Mitch Daniels and Purdue thread the needle)
“This is not to say Purdue, or other entities subject to the statute, have free reign to mandate vaccines and require proof of vaccination status,” Rokita wrote.
His opinion hedged a bit, offering some rope to anti-vaxxers: “At this point, it is not clear that Purdue University is in violation of the new law.”
Whether Rokita’s opinion will alter Purdue’s approach in any way still wasn’t clear, as of Thursday morning. Tim Doty, a Purdue spokesman, said it appeared the university’s policy was in the clear, but that he was checking.
IU had been standing by its decision before Rokita released his opinion. As of Thursday, there was no immediate word if that would change.
For both schools, the rationale had been about getting densely packed campuses as close to normal as possible as they dealt with an ongoing pandemic. (In Daniels’ words, issued with Purdue’s rule for the fall: “The higher percentage of us all who choose vaccination, the more open campus can be. There may be activities we can make available to those vaccinated, but not those who decline.")
But state Rep. Chris Campbell, a West Lafayette Democrat who co-authored the bill that included the COVID “passport” restrictions, said Thursday morning that the law never was intended to include Indiana’s colleges and universities.
And Campbell said she’d suspected an interpretation like the one Rokita came up with would be correct, “there’s no way I would have left my name on that bill.”
House Bill 1405 initially dealt with Medicaid matters, including those for schools. The “immunization passport” regulation was dropped in, along with pages of other amendments, in the waning hours before the General Assembly recessed the 2021 session this spring.
The language inserted says: “The state or local unit may not issue or require an immunization passport.” The passport, essentially, is the card given to those getting the Moderna, J&J or Pfizer vaccine to track when it was administered, where and the vaccine lot numbers.
Campbell said she flagged that amendment when it was proposed and ran the wording past Purdue and local K-12 administrators to get their feedback. She said she would have pulled her name from the bill if Purdue had raised red flags.
“I knew they were considering a vaccine requirement,” Campbell said. “But I also looked at it as a parent. I would be concerned if my child were placed in a room knowing that they were protected in the kind of tight living quarters you have with dorm rooms and that sort of thing. What Purdue was considering made perfect sense to me, as a parent. …
“After those discussions, it seemed that everybody was in agreement that this (passport) language was pretty benign,” Campbell said. “It seemed to be more of a response to the media and the outcry about requirements of a vaccine passport. And this seemed to be a way to address that issue by the majority party who wrote out language.”
Rokita argued that Purdue and IU, both state-funded schools, were arms of the state. He laid out a handful of legal cases that set that precedent.
Rokita’s opinion came after a request from state Rep. Peggy Mayfield, a Martinsville Republican, and Sen. Andy Zay, a Republican from Huntington, to look at IU and Purdue’s policies, each of which came in the past two weeks.
It came a day after, state Rep. Jim Lucas, a Martinsville Republican, posted a letter he and 18 other House Republicans sent to Gov. Eric Holcomb, asking the governor to use his executive powers to knock down IU’s requirement. As of Thursday, Holcomb hadn’t responded directly to the lawmakers’ demand.
Zay told the Times of Northwest Indiana that he plans to go after legislation that would get rid of the loophole Rokita said Purdue used. Lucas indicated he was ready to rally for similar measures.
With the General Assembly in recess until the fall, when it expects to use fresh U.S. Census data to redraw legislative districts, lawmakers wouldn’t need to call a special session to return to Indianapolis and challenge Purdue and IU before the fall semester starts.
Campbell said she’d fight against any attempt like that.
“I think the universities are taking different approaches,” Campbell said. “I think that it's good that they're continuing to take this very seriously and tried to protect the campuses.”
You can read Rokita’s full opinion here.
But here’s a breakout on Rokita’s rationale on Purdue’s policy:
At this point, it is not clear that Purdue University is in violation of the new law. For fall semester 2021, Purdue is introducing its “Year Two Purdue Pledge,” which requires students to do one of two things: get fully vaccinated and successfully submit valid documentation before coming to campus; or participate in frequent mandatory surveillance testing. If students provide valid documentation of vaccination against COVID-19, they will be exempt from the mandatory testing and “may have greater amounts of choice as it pertains to activities on campus.” Purdue also states it will randomly audit records submitted as proof of vaccination for validity and will discipline students found to have submitted falsified records. Purdue has not, however, set forth the process for submitting a record, or what it considers to be a sufficient proof of vaccination. Again, though, this documentation requirement is only for students who choose to do so and wish to be recognized by the university as fully vaccinated. Letters to students and faculty stated that the Trustees would “review, discuss, and ratify an updated Protect Purdue Pledge and other Protect Purdue policies.” This future meeting may provide greater detail on restrictions and what specific activities will require vaccination before participation.
This is not to say Purdue, or other entities subject to the statute, have free reign to mandate vaccines and require proof of vaccination status in violation of Ind. Code ch. 16-39-11. The Pledge requires either vaccination/proof of vaccination or the mandatory surveillance testing for all students, regardless of whether they live in on-campus housing, are college athletes, study abroad, or want to participate in other campus activities. Thus, Purdue’s policy is uniform and applied consistently across the entire student population. It permits even vaccinated students to not provide the university with their immunization status if they are willing to be tested for COVID-19. However, if any department of subgroup within the university attempts to mandate the vaccination and require proof of it as a prerequisite to participation, this could be a violation of the statute. For example, if a college athlete is required by the coach or athletic department to get the COVID-19 vaccine and provide evidence of vaccination to keep their Purdue-sponsored scholarship – removing the second option of testing – this likely violates the statute; there is no “choice” for the athlete but to provide his or her immunization status if the athlete wants to keep the scholarship.
And here’s Rokita on IU’s vaccination requirement:
Indiana University’s policy clearly violates the prohibition set forth in Ind. Code ch. 16- 39-11 of requiring vaccine passports. IU now requires all students, faculty, and staff members to be vaccinated. This requirement itself is not a violation of the statute and is legally permissible. However, the university then further requires the individual to use a COVID-19 self-report form to declare information regarding their immunization, and they then must upload a scan or photo of their vaccine card. These actions are specifically prohibited under Ind. Code § 16-39-11-5(a).
Unlike Purdue, IU gives students, faculty, and staff no other option or alternative to vaccination. Students who fail to comply “will have their class registration cancelled, CrimsonCard access terminated, access to IU systems (Canvas, email, etc.) terminated, and will not be allowed to participate in any on campus activity.” Faculty and staff who refuse “will no longer be able to be employed by Indiana University” and “[w]orking remotely to avoid meeting the COVID-19 vaccine requirement is not an option.” IU representatives have also stated on multiple occasions that exemptions to the requirement, which will be available beginning June 15, would be “strictly limited.” This policy does not just apply to “optional” activities, where individuals can simply opt out of participation if they do not wish to vaccinate. Furthermore, there is no alternative to vaccination, such as submitting to mandatory surveillance testing. IU provides no choice to its students, faculty, and staff – not only must they be vaccinated, but they must also provide proof of it to the university to maintain their status as a student or employee. This seems precisely what the new law was intended to avoid.
IU mentions it may also ask its students, faculty, and staff for permission to access their CHIRP records; CHIRP is the Indiana immunization registry. Ind. Code § 36-9-11-5(b)(1) and (4) does not prohibit the state or a local unit from maintaining or storing a record of an individual’s immunization status, or from maintaining an immunization record for a public health purpose. Therefore, any student at any education level who produces their vaccination records as a requirement for school entry, whether in paper form or by granting access to an electronic immunization registry, may by default disclose their COVID-19 vaccination status if it is available on the student’s full immunization record. This is another critical point, as public schools (elementary and secondary) are required by Ind. Code § 20-34-4-1 to keep an immunization record of each of its students and Ind. Code § 21-40-5-2 requires public universities to do the same for its residential on-campus students. While access to CHIRP records is not a violation if the student, faculty, or staff member grants such access, IU’s requirement of proof of COVID-19 vaccination may make individuals feel compelled to do so. Again, this requirement of proof would violate Ind. Code ch. 16-39-11.
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