Updated: Jan 31, 2022
Virginia’s new Republican Attorney General Jason Miyares issued his first opinion Friday, saying the state’s public universities may not require students to get COVID-19 vaccines.
WDBJ7 TV reported the decision reverses an opinion by Miyares’s predecessor, Democratic Attorney General Mark Herring, who said Virginia’s public universities have the specific and implied discretion to mandate the COVID vaccine.
Striking a blow against bureaucratic tyranny Miyares’s opinion points to the Virginia legislature as the controlling authority in the matter of which vaccines may be required by the Commonwealth’s colleges and universities:
The General Assembly has also enacted statutes governing specific aspects of university operations such as student health and campus safety, financial assistance, and academic policies. With regard to immunizations, the General Assembly has made clear the immunizations that are required for a student to enroll in an institution of higher education. Under § 23.1-800 of the Code of Virginia, “each student shall be immunized by vaccine against diphtheria, tetanus, poliomyelitis, measles (rubeola), German measles (rubella), and mumps” prior to enrollment “for the first time in any baccalaureate public institution of higher education.” Students may not register for a second semester or quarter until they have furnished “documented evidence, provided by a licensed health professional or health facility, of the diseases for which [they] ha[ve] been immunized.”
Under long-established law, “[w]hen faced with a choice between a specific and general statute, the former is controlling.” Thus, when determining what immunizations a university may require its students to receive, § 23.1-800, as the more specific statute governing student vaccination, takes precedence over the more general authority provided to boards under § 23.1 -1301,
Miyares writes the General Assembly may enact a statute requiring the vaccine for in-person attendance, but as of Friday, it has not done so. He said the Code of Virginia does not state Virginia’s public institutions may generally require vaccines as a condition of enrollment of in-person attendance, only those specified by statute.
“Although the General Assembly specifically authorized public institutions of higher education to assist the Department of Health and local health departments in the administration of the COVID-19 vaccine, the legislation did not grant such institutions power to impose vaccine requirements,” Miyares wrote. “…the authority to require immunization during a public health emergency belongs to the State Health Commissioner,” not the colleges and universities the opinion concluded.
Miyares also noted in passing that he is vaccinated and boosted and that he encourages everyone to get vaccinated.
It is worth noting that Attorney General Miyares did not take the obvious swipe at Democrats and point out they controlled the legislative and executive branches of Virginia state government for the two years the COVID health emergency has been in effect and could have added COVID vaccination to the list of existing vaccinations passed by the Virginia General Assembly. Instead, they punted the decision to unelected university bureaucrats.
We think conservatives should be particularly happy with Attorney General Miyares’s opinion because it strikes straight to the heart of the Democrats’ regime of bureaucratic tyranny and makes it clear that the elected legislature, not the higher education bureaucrats, are the ones in charge of deciding who is required to get what vaccine to enter Virginia’s colleges and universities.
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