Can a Virginia public university require students to be vaccinated against COVID-19 to enroll or attend classes?

Subject

Whether Virginia's public colleges and universities may require students to be vaccinated against COVID-19 (including boosters) as a general condition of enrollment or in-person attendance, when the General Assembly has not specifically authorized such a requirement.

Plain-English summary

The vaccination authority of Virginia public universities is governed by two statutes that point in different directions. Section 23.1-1301 gives boards of visitors broad general authority to "make regulations and policies concerning" their institutions, the same provision used to support things like campus weapons regulations. Section 23.1-800 is the specific student immunization statute: it lists the vaccines a student must have before enrolling for the first time (diphtheria, tetanus, polio, measles, rubella, mumps), and adds meningococcal disease and hepatitis B with a waiver option. COVID-19 is not on the list.

In April 2021, AG Mark Herring had issued opinion 21-030 concluding that boards of visitors could require the COVID-19 vaccine for in-person attendance under their general § 23.1-1301 powers. AG Jason Miyares, asked by Governor Youngkin to revisit the question, reached the opposite conclusion in this opinion. The Miyares opinion turned on a classic Virginia interpretive canon: when a specific statute and a general statute conflict, the specific statute controls. Section 23.1-800 specifically governs student vaccination and lists the required diseases. The General Assembly's enumeration excludes COVID-19, and boards of visitors cannot use their general authority under § 23.1-1301 to add to the legislature's specific list.

The opinion gives three additional supporting points. First, the 2021 opinion's reliance on DiGiacinto v. Rector & Visitors of George Mason Univ. was misplaced; in DiGiacinto, the Virginia Supreme Court upheld a board's weapons regulation precisely because no specific statute limited the board's general authority in that area. Here, by contrast, § 23.1-800 specifically governs student vaccination, so the analogy does not hold. Second, the existence of a state of emergency does not expand the powers of entities that are subject to General Assembly control; the emergency-immunization authority belongs to the State Health Commissioner under § 32.1-43 and § 32.1-48. Third, the General Assembly demonstrated awareness of COVID-19 issues by amending other statutes (such as the FOIA electronic meeting rules) but did not amend § 23.1-800 to add COVID-19; that silence is significant.

The opinion expressly supersedes the contrary conclusion of the 2021 opinion.

What this means for you

If you are a Virginia public university student or applicant

The opinion concludes that, absent specific authority from the General Assembly, a Virginia public college or university may not require COVID-19 vaccination as a general condition of enrollment or in-person attendance. It frames this as covering all public institutions of higher education in the Commonwealth.

The opinion is limited to general enrollment and attendance. It does not address testing or masking rules, and it notes the Commissioner-authority and legislative paths rather than vaccination requirements that originate from a third party such as a clinical-placement site. The opinion's specific-statute reasoning applies to public institutions; it does not speak to private colleges.

If you are a public university administrator or board of visitors member

The opinion holds that a board of visitors may not use its general § 23.1-1301 authority to require COVID-19 vaccination, because the specific student-immunization statute (§ 23.1-800) governs and excludes COVID-19. It expressly supersedes the contrary 2021 opinion (21-030). The opinion identifies two channels it does not foreclose: action by the State Health Commissioner during a public health emergency, and legislation amending § 23.1-800. It treats the existence of a state of emergency as not, by itself, expanding board authority.

If you are an employee of a Virginia public university

The opinion addresses student enrollment and attendance, not employees. It does not resolve whether or how a public university may impose vaccination requirements on its workforce.

If you are a public health official

The opinion holds that the emergency-immunization authority rests with the State Health Commissioner, not boards of visitors. It quotes the Commissioner's power to require immunization "to control the spread of any disease of public health importance" and to require "immediate immunization of all persons in case of an epidemic." On the opinion's reasoning, a campus-wide requirement during an outbreak would run through Commissioner action rather than board action.

If you are a state legislator

The opinion holds that the General Assembly's silence (not adding COVID-19 to § 23.1-800) means boards of visitors lack the authority to require it. It notes the prior opinion's acknowledgment that "the General Assembly could enact a statute requiring the COVID-19 vaccine for in-person school attendance" and that, as of the opinion, it had not done so.

Common questions

Q: Does this apply to private colleges in Virginia?
A: No. Private colleges in Virginia are not bound by this opinion. They can set their own admission and attendance requirements through their student contracts, subject to anti-discrimination and other applicable laws.

Q: Can a clinical program at a public university still require vaccination?
A: Probably yes, when the requirement comes from the clinical placement site rather than from the university. Nursing and medical students placed at hospitals routinely face hospital-imposed vaccination requirements; the university is not imposing the requirement, the clinical site is. The opinion addresses general enrollment and attendance.

Q: What about other vaccines? Can a university require flu shots or HPV vaccination?
A: Section 23.1-800 governs. Required vaccines under that statute are diphtheria, tetanus, polio, measles, rubella, mumps, plus meningococcal disease and hepatitis B (with a waiver option). Vaccines not on that list cannot be required as a general condition of enrollment by a public institution.

Q: What about studying-abroad requirements?
A: Travel vaccination requirements imposed by destination countries are not university mandates and are not affected by this opinion. The country sets its entry requirements; the student must comply to enter.

Q: What if the State Health Commissioner issues an order requiring COVID-19 vaccination?
A: That would be a different legal authority and would not be barred by this opinion. The Commissioner's power under § 32.1-43 and § 32.1-48 is independent of board of visitors authority.

Q: What about the federal government's authority to require vaccination at federally funded research programs?
A: Federal requirements operate independently of state law and are not addressed by this opinion. A federally funded program with a vaccination requirement is enforcing federal authority, not university authority.

Q: Did this opinion immediately invalidate vaccine policies in place at Virginia public universities?
A: AG opinions are persuasive authority, not binding court orders. Most Virginia public universities reviewed and dropped their COVID-19 vaccine requirements following the opinion, but the technical legal status of a policy depends on the institution's specific actions and any court rulings, of which there were several in 2022.

Background and statutory framework

The two AG opinions on this question (21-030 and 22-004) bracket the political shift between the Northam and Youngkin administrations. The 2021 opinion under AG Herring relied on the broad authority of boards of visitors and the existence of a state of emergency to support the conclusion that mandates were permissible. The 2022 opinion under AG Miyares, requested by the newly inaugurated Governor Youngkin, reached the opposite result by focusing on the specific student immunization statute.

The legal analysis in the 2022 opinion is grounded in established Virginia interpretive principles:

• Dillon Rule. Public institutions are creatures of the General Assembly and exercise only those powers expressly conferred or necessarily implied. This is foundational for Virginia local and quasi-public bodies.
• Specific over general. When a specific statute and a general statute conflict, the specific controls. Section 23.1-800 specifically lists required student vaccines and excludes COVID-19; the general regulatory authority of § 23.1-1301 cannot override that specific list.
• Legislative silence is meaningful. The General Assembly amended other statutes to address COVID-19 (FOIA electronic meeting rules, for example) but did not amend § 23.1-800 to include COVID-19. That silence is interpretively significant.
• State of emergency does not expand power. A state of emergency, by itself, does not grant subordinate entities new authority. The emergency immunization authority belongs to the State Health Commissioner under specific statutes.

The DiGiacinto comparison is the analytically central point. In DiGiacinto, the Virginia Supreme Court upheld a George Mason regulation banning weapons on campus, using the general regulatory authority of the board because no specific statute governed weapons on university campuses. The 2021 opinion analogized vaccination to weapons regulation. The 2022 opinion broke the analogy: vaccination is specifically governed by § 23.1-800, so the DiGiacinto framework does not apply.

This opinion is one of the most consequential Virginia AG opinions of the COVID era for the higher-education sector. It reset campus policy across the Virginia public system in January 2022.

Citations and references

Statutes:

• Va. Code Ann. § 23.1-800 (student immunization requirements)
• Va. Code Ann. § 23.1-1301 (board of visitors general powers)
• Va. Code Ann. § 32.1-43 (State Health Commissioner authority)
• Va. Code Ann. § 32.1-48 (emergency immunization)

Cases:

• Batcheller v. Commonwealth, 176 Va. 109 (1940) (boards of visitors as creatures of the General Assembly)
• DiGiacinto v. Rector & Visitors of George Mason Univ., 281 Va. 127 (2011) (board regulatory authority in absence of specific statute)

Prior opinion superseded:

• 2021 Op. Va. Att'y Gen. No. 21-030 (concluding boards could require COVID-19 vaccination)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/22-004-Youngkin-issued.pdf

Original opinion text

Office of the Attorney General
Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

January 26, 2022

The Honorable Glenn A. Youngkin
Governor of Virginia
Office of the Governor
1111 East Broad Street
Richmond, Virginia 23219

Dear Governor Youngkin:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You have asked whether Virginia's public institutions of higher education may require students to receive vaccinations (including booster shots) against COVID-19 as a general condition of enrollment or in-person attendance.

Applicable Law and Discussion

Virginia's public institutions of higher education are public corporations. As such, they are afforded separate corporate status but remain under control of the General Assembly and may only exercise such powers as the General Assembly has expressly conferred or necessarily implied.

In Chapter 13 of Title 23.1 of the Code of Virginia, the General Assembly has conferred a number of general powers to the boards of visitors of public institutions of higher education. Such boards are granted general authority to, among other things, "make regulations and policies concerning" their respective institutions. Courts have held that the General Assembly has granted broad discretion to boards of visitors, including "the implied power to do what is reasonably necessary to effectuate the powers expressly granted."

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." Subsection C of the statute further provides that "prior to enrollment for the first time in any baccalaureate public institution of higher education, each full-time student shall be vaccinated against meningococcal disease and hepatitis B unless the student or, if the student is a minor, the student's parent or legal guardian signs a written waiver stating that he has received and reviewed detailed information on the risks associated with meningococcal disease and hepatitis B and the availability and effectiveness of any vaccine and has chosen not to be or not to have the student vaccinated."

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.

Moreover, the State Health Commissioner may require immunization (as well as other measures) "of any individual or group of individuals when he determines any such measure to be necessary to control the spread of any disease of public health importance . . . ." The Commissioner may also "requir[e] immediate immunization of all persons in case of an epidemic of any disease of public health importance."

A prior Opinion of this office, written to Delegate Keam on April 26, 2021, concluded that the "broad specific and implied discretion" granted to institutions of higher education in § 23.1-1301 and other statutes contained in Chapter 13 of Title 23.1 permitted public institutions of higher education to condition in-person attendance on receipt of an approved COVID-19 vaccine. That Opinion, however, failed to consider § 23.1-800. The Opinion relied in part on DiGiacinto, 281 Va. at 136, which reliance is misplaced. In that case, the Virginia Supreme Court upheld the authority of the Board of Visitors to regulate the possession of weapons on campus by virtue of its general authority to "safeguard the university's property and the people who use it"; no statute limited this authority or delegated its exercise to another entity. In contrast, the General Assembly has itself identified the essential immunizations for students and has made clear the authority of the Commissioner of Health to require vaccinations under limited circumstances.

Further, while the prior Opinion notes the existence of a state of emergency and references the impact of that emergency on institutions of higher education, states of emergency do not constitute a general grant or implication of expanded powers for entities that are expressly subject to the control of the General Assembly. Notably, the authority to require immunization during a public health emergency belongs to the State Health Commissioner.

As recognized in the prior Opinion, "[t]here is no question that the General Assembly could enact a statute requiring the COVID-19 vaccine for in-person school attendance." As of this writing, it has not done so. Over the course of the COVID-19 pandemic, the General Assembly has amended other statutes to address pandemic-related issues. For example, it amended the Virginia Freedom of Information Act to broaden the purposes for which public bodies may hold electronic meetings without a quorum physically assembled at one location. 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. To date, the General Assembly has not amended the specific immunizations enumerated in § 23.1-800 to include immunization for COVID-19, and boards of visitors may not exercise an implied power to require a certain vaccine when a specific statute governing vaccination excludes it.

To the extent the Opinion concluded that Virginia's state institutions of higher education could condition in-person attendance on receipt of an approved COVID-19 vaccine, that Opinion is superseded.

Conclusion

For the reasons stated herein, I conclude that, absent specific authority conferred by the General Assembly, public institutions of higher education in Virginia may not require vaccination against COVID-19 as a general condition of students' enrollment or in-person attendance.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General