Although a judge ruled the state’s ban on COVID-19 vaccine requirements in schools unconstitutional last week, the University of Arizona is waiting to see how a challenge to that ruling unfolds in court before deciding if it will mandate vaccines on campus.
“For right now, my position would be let’s just wait. Let all of this play out because we’re doing a great job right now,” UA President Robert Robbins, who has repeatedly urged all staff and students to get vaccinated, said at a virtual news conference Monday morning. “All three of the state universities and the Arizona Board of Regents all had a discussion, and we agreed we’d hold tight with what we’re doing right now.”
Last week, ABOR, which is composed of 12 members appointed by the governor, issued this statement: “We do not believe the ruling impacts any of the current COVID related policies at our public universities, and the universities have not indicated any plans to change them.”
To date, the COVID-19 virus has killed approximately 20,000 Arizonans and 700,000 total Americans. Pima County, which is home to most of the 47,000 students enrolled at the UA this year, is still classified as having a high rate of viral transmission. That means the county has greater than 100 cases per 100,000 people — as of Monday, it’s reporting more than 1,000 new cases per week, according to Dr. Theresa Cullen, director of the county health department. Most of those cases are among unvaccinated people, which has resulted in overwhelmed Arizona hospitals.
The UA, which is operating its Tucson campus at full capacity for the first time since the pandemic began, is continuing its sanitization efforts, offering robust voluntary testing services and possible incentives for students and staff to voluntarily upload their vaccination card (54% and 51%, respectively, have done so) and requiring masks indoors.
Changing legal framework
One thing the UA and all of the other public schools in Arizona have not been able to do so far this school year is require proof of vaccination. Robbins has previously said he would be in favor of requiring vaccines but would nonetheless “work within the framework of the laws” to contain the virus.
That legal framework is now in flux.
Over the summer, the Arizona Legislature passed a “budget reconciliation” bill banning schools from requiring unvaccinated people to wear masks, though the UA and other Arizona colleges and universities found a loophole and require everyone to wear masks in indoor spaces.
At the same time, the Legislature also passed three other so-called budget bills containing various non-budget-related rules, including one barring colleges and universities from requiring proof of vaccination for students and employees, another banning required COVID-19 testing on campus and yet another limiting the teaching of Critical Race Theory.
All of it was supposed to take effect Wednesday, Sept. 29, until Maricopa County Superior Court Judge Katherine Cooper ruled last Monday that proposed legislation is constitutionally required to cover a single topic. None of the provisions in question are necessarily unconstitutional by themselves, but rolling all of them into the budget bills, Cooper said, failed to inform Arizonans about the changes that would happen once signed into law.
Two days later, Arizona Attorney General Mark Brnovich filed an appeal with the Arizona Supreme Court, which has since accepted jurisdiction of the case, and litigation is ongoing.
‘Best public health practice’
But what if, after both sides argue their case, the high court sides with Judge Cooper’s original ruling and says a ban on requiring vaccines in higher education is unconstitutional?
“If there’s a clear path forward for us, then I think — at least my opinion on it — it would be the best public health practice for everyone to get vaccinated,” said Robbins, who is also a cardiothoracic surgeon with recollections of people clamoring to take the polio vaccine while he was growing up in the 1950s.
In 2021’s climate, however, Robbins said he would expect 10% to 15% of people will refuse a COVID-19 vaccination even if the UA put a mandate in place.
“People would lose their jobs and just say: ‘I’m not going to do it. I am not going to get that vaccine,’” Robbins said. “That leaves us in a public health quandary as well because we’ve got to get a high enough herd immunity status to be able to stop the mutation of this virus.”
Dr. Richard Carmona, the former U.S. Surgeon General who has been advising the UA’s pandemic response, was also recently appointed by Gov. Doug Ducey to serve as Arizona’s senior public health advisor.
“The mandate issue,” he said Monday, “just becomes divisive.”
Instead, his focus is “to make sure everyone gets vaccinated and we practice the best mitigation strategies all the time. Period,” Carmona said. “We should not be distracted into political distractions when people are sick and dying.”
‘Tipping point’?
In addition to waiting on the Arizona Supreme Court’s decision on vaccine mandates, Robbins said he also is watching what’s happening at the federal level. Last month, President Joe Biden announced that all federal employees and contractors must get vaccinated or undergo regular testing.
“We’re a large university who is very, very dependent on federal funding,” Robbins said. “If the federal government tells us, ‘If you take any of our money, you have to be vaccinated,’ I think that may be a tipping point for us.”
