The Untouchable Student Vaccine Mandate

In the late 1980s and early ‘90s, at the height of fears about the AIDS pandemic, a little-known board within North Carolina’s public health agency passed rules to ensure that children could safely go to school, people exposed to the virus could get access to testing, and medical professionals could do their jobs.

It was vital, public-health experts agree in hindsight, that a deliberative citizen panel supported by a professional staff could curb the frothy impulses of politicians when public reaction to the disease often was driven by irrational fear.

By keeping HIV/AIDS policy out of the legislature, North Carolina was able to establish medically grounded AIDS policies, at least for a time.

“We tried to keep it as much as we could under the radar and keep it within the commission,” said Chris Hoke, a Raleigh attorney who served as chief of the Division of Public Health’s Office of Regulatory and Legal Affairs for more than 20 years.

For example, Hoke said, “Kids [with HIV] were being excluded from school for no reason. If that had gone to the legislature”—at a time when the lieutenant governor described people with HIV as time bombs loosed on the community—“there is no telling what would have happened with that policy.”

Now that same board—the N.C. Commission for Public Health—is back in the public eye. By state law, it has the power to mandate vaccines for students.

With federal approval for COVID-19 vaccines for younger children on the horizon, the stage is set for a tense and highly contested decision about whether the state should mandate vaccines for K-12 and college students in North Carolina.

So far, no one in North Carolina seems eager to take the reins. Some parents in North Carolina have been stridently vocal at local school board meetings about simple mask mandates, as The Assembly reported from Dare County last month. Since then, the chairman of the Stanly County school board resigned after he said he received death threats. Requiring not just one, but two shots in the arms of children would be an even harder sell.

Since April of this year, the University of North Carolina System has said that it’s beyond its power to mandate vaccines for its 244,000 students statewide. Peter Hans, the president of the UNC System, says there’s an “absence of clear legal authority for a mandate,” punting the issue to the commission.

Some public health scholars and state lawyers say otherwise. They say school districts and institutes of higher learning have more latitude in requiring vaccines than they realize, or perhaps care to admit.

The commission, which is mostly appointed by the governor and meets next on Friday, could settle the issue by requiring the COVID vaccine for students after it’s been approved by the FDA. The commission enjoys a sterling reputation in the public health community as one of North Carolina’s few apolitical boards.

But the administration of Gov. Roy Cooper doesn’t seem poised to ask the commission to adopt a mandate. And some commissioners privately say they have no idea how a vote would shake out—and fear for the commission’s future if they do attempt to introduce a mandate.

While the vast majority of children infected with COVID don’t experience serious illness, with pediatric intensive care units across the country full to bursting, experts say vaccine mandates for children could be an important tool for controlling the pandemic.

Dr. Mike Smith is interim division chief of pediatric infectious diseases at Duke University Medical Center and a site investigator for the Pfizer vaccine trials in adults and children.

“I am hopeful that these vaccines are found to be safe, immunogenic and efficacious in pediatric patients,” Smith wrote in an email. “If that is indeed the case … I do think public health decision makers should consider adding the covid vaccine to the list of immunizations required for school children.”

Gavin Yamey, professor of global health and public policy at Duke, agrees. “Vaccination protects kids from illness, it helps to prevent education disruption, and it also protects kids’ families and communities,” he wrote in an email. “For all these reasons, NC policymakers should take a close look at the benefits of adding COVID-19 vaccination to school vaccine requirements.”

Currently, North Carolina requires K-12 students to receive vaccines for 12 diseases, including diphtheria, tetanus, polio, measles and chickenpox. The latest change occurred in 2014, when the commission added a meningococcal conjugate vaccine and booster requirement that went into full effect in August 2020. Also according to state statute, institutes of higher education, both public and private, must require the same vaccines mandated for K-12 students.

In North Carolina, there are two clear routes to a statewide vaccine mandate for schools. The first is through legislation by the Republican-controlled General Assembly, which is, by all accounts, very unlikely.

Most legislative Republicans have opposed COVID-related mandates. In August, 55 of 68 House Republicans signed a letter asking hospital leaders to reverse their decision to mandate COVID vaccines for their workers. The legislature also has directed school districts that require masks to reevaluate that policy every month.

A representative for Senate Republican leader Phil Berger told The Assembly that Berger would oppose mandating COVID vaccines for children unless there were significant changes to severe illness rates. The Republican leaders of the Senate Health Care Committee and House Health Committee did not return calls and emails from The Assembly requesting comment on the issue.

“Unfortunately, the Republican response to mask and vaccine mandates has been abrasive,” Rep. Cecil Brockman, a Democrat on the House Health Committee, told The Assembly. “I do not see the legislature taking action on any of these types of mandates for children at this time or in the future in this state.”

The second route is through a wonkish commission that the public and key decision makers know almost nothing about.

The Commission for Public Health is an eclectic group with a grab-bag assortment of responsibilities: keywords from rules it has codified in the last ten years include “marine toilets,” “sale of turtles,” “newborn screening for critical congenital heart defects,” and “swimming pool definitions.”

“We have a broad mandate on everything that affects public health,” commission member Doug Sheets, a retired obstetrician-gynecologist from Rutherfordton, told The Assembly.

The composition of the commission, which is within the North Carolina Department of Health and Human Services, isn’t what you might expect for the deciding body on childhood vaccines. By law, six of the 13 members must be a veterinarian, a pharmacist, an optometrist, a dentist, a registered nurse, and an “engineer experienced in sanitary engineering or a soil scientist,” all appointed by the governor to serve four-year terms.

Four more commissioners are selected by the North Carolina Medical Society, and there are no requirements for the backgrounds of the remaining three, also chosen by the governor—the current crop are a celebrated Raleigh restaurateur, a psychiatrist and a diabetes educator.

But the commission is by far the best hope, and the fastest route, for proponents of a statewide mandate in North Carolina. The emergency rulemaking process outlined in the North Carolina general statutes could put a rule on the books in as few as six business days if the commission votes in its favor.

Politics has, by and large, left the commission to do its work in blessed obscurity, which is exactly how commissioners prefer it. One example is lead poisoning, said Hoke, the former Division of Public Health lawyer and the author of much of the law under which local public health departments across the state operate.

“The commission has adopted rules with regard to lead-based paint—this is a hazard out there, it has to be cleaned up to prevent children getting sick,” Hoke said. “If [the commission didn’t exist] and you had to go to the legislature to get that done, I would hate that. It would be very politicized and there would be all kinds of loopholes and exemptions.”

But Hoke predicted that if a COVID vaccine mandate were proposed by the commission, “We would not be as successful in keeping it out of politics in today’s environment … In my opinion, it is likely not going to be the Commission for Public Health that creates a mandate for vaccines.”

If the commission adopted a mandate, the legislature could seek to block it with a new law. “It’s really easy for anybody that doesn’t like a rule to stop it—to get the legislature involved, and have them say, that’s something that the elected people who’re responsible to the people, they get to decide that, and not a bunch of bureaucrats,” Hoke said.

Ron May, a pediatric hematologist and oncologist based in New Bern and vice president of medical affairs at CarolinaEast Health System, is chair of the commission. May told The Assembly that the commission and its DHHS partners have historically looked to the American Academy of Pediatrics and the federal Advisory Committee on Immunization Practices before issuing any vaccine mandates.

Both recommended vaccination for children 12 or older in May, and on Oct. 7, Pfizer officially requested approval for vaccination in children 5-11 from the Food and Drug Administration.

How the commission would vote on a vaccine requirement is anyone’s guess. Many of the members aren’t physicians, and since these are private citizens on a commission that doesn’t usually face much media scrutiny, it’s difficult to predict a proposed rule in the way a political journalist or legislative staffer could sketch out a rough headcount for a bill in the General Assembly.

Members include Joseph Gordon, a Raleigh veterinarian and registered Democrat whose call-waiting message references Bible verses about animals; Michael Riccobene, a registered Republican with a toothy empire of more than 30 dental practices across the state and a soul patch goatee; and Greg Hatem, a registered Democrat and owner of numerous Triangle-area restaurants, including the barbecue joint The Pit.

Two commissioners who spoke on condition of anonymity said they don’t think there have been any backchannel conversations between members about the prospect of a vaccine mandate for schoolchildren or discussion of who would support it. They said an attempt at a mandate by the commission could inspire backlash from the legislature on future issues.

Tyler Gilreath of Cary didn’t see an urgent need to be vaccinated for COVID, despite his mother’s persistent pleas. He was 20 years old, healthy and active—he’d even been an ROTC cadet as a freshman—and didn’t have pre-existing conditions that made him vulnerable to severe disease.

He’d get the shot, he assured his mother, once he got to the University of North Carolina at Wilmington. But his new roommates caught the coronavirus, and about two days after classes began, Gilreath tested positive too.

Three weeks of a high fever and nausea gave way to a sinus infection that developed into staph, eventually creeping into his brain. After suffering severe brain damage, Gilreath was taken off life support on Sept. 27.

Statistics on COVID fatalities in college students are difficult to find since health officials generally categorize deaths by age rather than where the illness was thought to be contracted. Anecdotally, several college students across the country died from COVID and related complications in September—including Gilreath, a 21-year-old student at Mount Mercy University in Iowa, and a 20-year-old Texas A&M student.

A New York Times database last updated in May showed more than 26,000 total coronavirus cases among students and employees at colleges in North Carolina since the virus emerged.

“This was always how it was going to end—with a student dying,” said Benjamin Mason Meier, a lawyer and professor of global health policy at UNC-Chapel Hill.

For months, Meier and several other public health scholars across the UNC system have pushed for the state universities to mandate vaccines for students and faculty. If UNC-Wilmington required the COVID vaccine, like the private universities Duke, Wake Forest, Elon and Shaw have, Gilreath would have been required to have his vaccination before he set foot on campus.

“This student wasn’t vaccinated because the UNC System didn’t mandate the vaccination,” Meier said. “The UNC System had the legal authority to do so, but it made a political decision to avoid vaccination mandates. This is the result.”

Several public health law scholars in North Carolina told The Assembly that the state’s public universities could require students to be vaccinated, regardless of whether the commission for Public Health required it.

“These laws have never been interpreted to prevent a college or university from imposing additional immunization requirements when necessary,” Jill Moore, associate professor of public law and government at UNC-Chapel Hill, told The Assembly in an email. Moore is a specialist in communicable disease control, adolescent health, and local health department organization and governance.

“Several of N.C.’s private colleges and universities, which are subject to these exact same laws, have determined that they may require COVID-19 vaccinations for their students,” Moore wrote. “I agree with that conclusion and do not see any reason why it would not apply equally to the state’s public universities.”

The Assembly asked the state Department of Health and Human Services whether schools can mandate immunizations in addition to what is required by the state. DHHS referred to guidance it issued on Aug. 16 in which it said colleges and universities “can require COVID-19 vaccination for students, faculty and staff who will be physically present on campus.”

Hoke also said the UNC System could mandate COVID vaccines for students on their campuses.

“UNC knows that. They just know that it’s too political,” he said. “Like I said, we [the commission] are likely to get stopped in our tracks if we try to do a vaccine mandate by rule, I think [the UNC Board] feel like they would be stopped in their tracks by the legislature if they got out on that limb.”

Norma Houston, chief of staff for the UNC System, said the UNC System and President Hans have encouraged North Carolinians to get vaccinated and are “enormously proud” of their record over the last 18 months of keeping students “on track.”

Clinics run by the UNC System vaccinated more than 101,000 North Carolinians on and off campus, Houston said. She reiterated that the commission has statutory authority over statewide vaccine mandates, and said that UNC would “follow the law” if a mandate were issued.

Houston also suggested that a vaccine mandate from the state could harm students.

“Enforcing a mandate is not a simple task at a public university,” Houston said in a written statement. “We are already using a wide array of incentives and consequences to encourage vaccination. A mandate could require more stringent sanctions, potentially including suspension from class, access to campus, or even disenrollment.

“Based on the patterns of vaccination we see across our state, those outcomes are likely to fall disproportionately on low-income, minority, and rural students—precisely the populations that already suffer from lower rates of college access and completion. As a public institution devoted to serving all North Carolinians, we don’t take those consequences lightly.”

Media representatives for the UNC System did not directly address questions from The Assembly about who was responsible for the legal interpretation that public universities don’t have the power to require vaccinations, as well as requests for comment on the legal opinions of several UNC professors to the contrary.

North Carolina’s 115 public school districts also may be able to issue a vaccine mandate before the Commission for Public Health does, if it ever does. Some North Carolina districts are already mulling the move.

On Aug. 16, the Orange County school board voted against a vaccine requirement for students participating in activities like chorus and athletics. The measure didn’t pass because board members were uncomfortable with the mandate, though the board believed it had the power to do so. The school district’s staff had recommended the vaccine mandate for those students, according to The News of Orange County.

Eric Davis, chairman of the state Board of Education, described the question of district-level mandates and the board’s role in them as “an evolving issue,” and declined to comment until “the issue becomes clearer.” DHHS did not directly answer questions from The Assembly as to whether school districts in North Carolina can require vaccines on their own.

California recently became the first state to mandate vaccinations for K-12 students who attend public or private schools, after the FDA gives full approval. Several major districts in that state already require them.

The notion of a COVID vaccine mandate for students makes many community leaders—from politicians to pediatricians—skittish.

Several pediatricians across the state told The Assembly that while they would endorse vaccination for students, they’re reluctant to make public statements in favor of a mandate before the FDA gives full approval for children.

On Friday, the commission will reconvene digitally. During their last meeting, on Aug. 4, commissioners were presented with a packet of emails requesting they consider mandating the COVID vaccine—mostly from students, parents of students and faculty of campuses within the UNC system.

At the time, Assistant Attorney General John Barkley said they were “still trying to tie … down” a few issues related to the commission’s authority on requiring vaccines.

“We’ll look forward to getting more information, hopefully, at our next meeting,” May said.

The Assembly asked Gov. Cooper’s office if it would recommend that the commission support a vaccine mandate for students. Reflecting the sensitivity of the issue, Cooper’s press secretary didn’t directly respond to the question.

“Governor Cooper encourages everyone who is eligible to be vaccinated against COVID-19,” Jordan Monaghan wrote, “and the state is focused on working with communities, health providers, schools, restaurants, entertainment venues and employers, including the use of vaccine requirements, to help more people get their shots.”