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AG: IU can't require students and staff to show proof of COVID-19 vaccination

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Posted at 8:42 PM, May 26, 2021
and last updated 2021-05-27 15:02:54-04

INDIANAPOLIS — Indiana Attorney General Todd Rokita said Indiana University can require the COVID-19 vaccination for students and staff members, but can't require proof of vaccination.

The non-binding opinion he issued Wednesday evening comes after two state lawmakers asked him to review the policy.

Under HEA 1405, Rokita said IU "unquestionably violates" the act with its COVID-19 vaccination requirement for the upcoming school year.

“This session, members of the Indiana General Assembly passed legislation to codify in law a prohibition on COVID-19 vaccine passports, preventing public institutions from mandating proof of vaccination as a condition for receiving services or employment,” Rokita said in a press release. “Indiana University’s policy clearly runs afoul of state law—and the fundamental liberties and freedoms this legislation was designed to protect.”

Rokita noted the act prohibits public universities from requiring proof of the vaccine but doesn't prohibit them from requiring the vaccination itself.

MORE | Thousands sign petition requesting Indiana University retract vaccine mandate | IU students react to COVID-19 vaccine requirements

Purdue University's policy, which says students will need to get fully vaccinated and submit documentation or participate in testing, doesn't appear to violate the act because it's "no different than the guidelines universities have implemented for certain groups, like athletic teams, since the onset of the pandemic," Rokita said.

That advisory opinion, however, contradicts a top Republican legislative leader who said he didn’t believe the law adopted last month applied to public universities or K-12 schools.

The new law states that “the state or a local unit may not issue or require an immunization passport.”

It makes no mentions of educational institutions and Republican Senate President Pro Tem Rod Bray said on the day it was approved that he didn’t believe it applied to public universities or K-12 schools.

“I looked at it as state, county, local governments,” Bray said.

Bray’s office didn’t immediately comment Wednesday on Rokita’s opinion. However, Republican House Speaker Todd Huston said he’s disappointed in Indiana University’s decision to mandate the COVID-19 vaccine.

“I appreciate and agree with the attorney general’s opinion on this topic, and I hope Indiana University reverses course and supports the rights of students, faculty and staff to choose whether or not they receive the vaccine,” Huston said in a statement. “In addition, I believe IU should implement a more broad exemption process as provided with other immunizations.”

That puts Huston in line with several other Republicans in the legislature. “Under this law, I agree with the attorney general, as it was my intent, that public entities, including state universities, can't require proof of the vaccine," State Rep. Peggy Mayfield, R-Martinsville, said in a press release. "Hoosiers should have the right to make healthcare decisions that best suit their families, their personal medical circumstances, and a broad interpretation of their religious beliefs – a concept that we’re disappointed to see Indiana University has rejected."

When asked for a response to the opinion issued by Rokita, a spokesman for IU reiterated a statement released Tuesday in response to a letter sent to Gov. Eric Holcomb by state legislatures. You can read the response from IU below.

Indiana University shares the same goal as our faculty, staff, and students in seeking a return to a more normal fall semester, with full attendance at in-person classes, athletic and other events, and social activities without masking and social distancing. If we hope to do this while continuing to avoid large outbreaks, the science is clear that we need a much higher rate of immunity within our IU community. The vaccine is the only way to make sure that happens by the time students return. The policy mandating the vaccine reiterates that we are not requiring a vaccine “passport”; with everyone vaccinated, that would be unnecessary.

HB1405 that passed the Indiana General Assembly’s recently-concluded session did not include public universities in its definition of governmental entities. As co-author on the Indiana vaccine passport ban legislation, State Rep. Chris Campbell noted, state universities and colleges are not covered under the bill. She added that “they know what they need in their environment to keep others safe.”

We are confident this is the best policy for our campuses, utilizing vaccines that are authorized by the WHO, the FDA and a federal Scientific Advisory panel under Emergency Use Authorization. The Equal Employment Opportunity Commission has also confirmed in guidance that employers can require employees be vaccinated. We will continue to follow Indiana law and provide religious and medical exemptions as warranted, in keeping with policy for the six other vaccinations required by state law on our campuses.

Our focus remains on the safety and wellbeing of our IU community.

On Thursday morning, Indiana University released the following statement:

Indiana University is requiring the COVID-19 vaccine because it’s the only way the university can confidently return to the experiences and traditions our students, faculty and staff have told us are important to them: in-person classes, more in-person events and a more typical university experience.

In yesterday’s opinion, the attorney general affirmed that it is legal for us to require a vaccine, including one under an Emergency Use Authorization (EUA). His opinion questioned specifically the manner in which we gathered proof of vaccination. Although we disagree with that portion of his opinion, we will further consider our process for verifying the requirement.

The science is clear that we need a higher rate of immunity within our IU community. With the new requirement, most restrictions on masking and physical distancing this fall, as outlined in the fall health and safety guidelines announced this week, can be lifted. Requiring the vaccine is the best and fastest way to make sure that happens.

Rep. Campbell is a Democrat whose district includes Tippecanoe County. She was a co-sponsor of HB 1405 before the vaccine passport amendment was added. After the bill was amended, Campbell says she reached out to Purdue University to see if they had a problem with the amendment's language. In a statement to WRTV, Campbell said:

"When the vaccine passport language was added to HB 1405, I did have concerns about how it may affect public colleges and universities. I brought my concerns to Purdue University and they came back to me, saying that they were comfortable with the language as it was drafted.

With this reassurance and the fact that the language did not specifically include public colleges or universities, I had no further cause for concern. If the authors of this legislation wanted to prohibit our colleges and universities from requiring a vaccine passport, they should have specified that within the bill."

However, Purdue may not have objected because the university is not requiring its students and staff to get the COVID vaccine before the fall semester begins.

The Associated Press contributed to this report.

You can read Rokita's entire non-binding opinion below.