Analysis: Vaccine mandates could come to Idaho college campuses. Here's how.

COVID-19 test lab technician Ashalynn Bilton-Smith prepares test tubes for samples. In July, the University of Idaho received a $737,000 research grant from the federal National Institutes of Health, to sequence COVID-19 samples and study coronavirus variants in the Moscow area.

On April 7, Gov. Brad Little attempted to build a firewall against COVID-19 vaccine mandates — banning all state agencies from requiring so-called “vaccine passports.”

That firewall could crumble, at least on the state’s college campuses.

On Sept. 9, President Biden issued an executive order that appears to override Little’s order. Biden wants to require vaccinations for all federal contractors and their employees.

The order applies to Idaho universities’ federal contracts, which total $89 million, State Board of Education Executive Director Matt Freeman said Tuesday. As it now stands, contractors must get vaccinated by Dec. 8, unless they receive a medical or religious exemption.

But politics will intervene first. All of the Biden executive orders will end up in court. When the Idaho Legislature reconvenes on Nov. 15, in an attempt to pass anti-vaccine mandate bills, look for the change in the discussion — one that has focused on hospitals and other private employers, not state-run universities.

Until then, Idaho’s universities aren’t talking about the Biden order. Little and Attorney General Lawrence Wasden are silent as well.

Legal cover for red-state colleges?

The federal contractor rule, Executive Order 14042, could be the most far-reaching of the Biden vaccine requirements.

Biden is working on a separate federal rule, which would mandate vaccines for all employers with more than 100 employees. While that would appear to cover pretty much every college in America — and certainly private schools, such as Brigham Young University-Idaho, The College of Idaho and Northwest Nazarene University — this order doesn’t extend to public entities, operating under state purview.

The contractor rule does reach into campuses, however. And its reach appears extensive, says James G. Hodge Jr., a law professor and director of Arizona State University’s Center for Public Health Law and Policy. As written, he said, the order could apply to the entire campus, not just its contract site.

Colleges in numerous states are moving quickly to comply, including colleges in red states such as Alabama and Kansas.

“I think you’re going to see a lot more universities fall in line with that, and actually provide a really great legal backdrop for the state resistance they may get,” Hodge said last week, during an Education Writers Association seminar.

Arizona State, the University of Arizona and Northern Arizona have all said they will comply with Biden’s order — setting up a showdown with the state’s Republican governor, Doug Ducey, and its Republican attorney general, Mark Brnovich, who both oppose vaccine mandates.

The same political forces are in place in Idaho. Little and Wasden, both Republicans, have criticized Biden’s orders. However, Little and Wasden have focused so far on the potential impact on private businesses.

Wasden’s office declined comment this week on Executive Order 14042, and its implications for colleges and universities. Little’s office did not respond to requests for comment Wednesday.

The voluntary vaccine approach

Since April, with Little’s vaccine passport order in place, colleges and universities have had to walk a fine line.

That all unfolded earlier this fall, as the coronavirus delta variant began flooding over Idaho, overwhelming hospitals with an unprecedented COVID-19 caseload. Boise State flirted briefly with tightening pandemic protocols for home football games, saying it would require proof of a negative COVID-19 test or proof of vaccination.

Critics called it an end run around Little’s order. And Boise State punted before the rules even could go fully into effect; in a statement to the Idaho Press, the university blamed it on a shortage of test kits.

In essence, the universities are doing exactly what Little has been doing for months: encouraging Idahoans to get a vaccine.

Is it working?

Idaho State University says it has convinced 3,500 students to get their vaccinations, using a federally funded incentive plan that provides vouchers to students who get the shot through an on-campus clinic. The University of Idaho has its own vaccine incentive program, and 4,100 students have turned in their paperwork. Recently, Boise State estimated its campus vaccination rate at 88% — well above a languid 55% statewide rate that ranks at or near the bottom of national rankings.

The feds’ research footprint in Idaho

University officials aren’t saying much about Biden’s Executive Order 14042. Boise State declined comment, deferring to the State Board.

But universities seldom pass up a chance to tout new research money. Quite often, this comes from Uncle Sam, although some of the money comes in the form of grants that are outside the executive order. Here are four recent examples, all announced after Biden’s Sept. 9 executive order:

On Sept. 21, the U.S. Department of Energy renewed a $5 million grant, allowing a team of nearly 30 Boise State faculty members, staffers and students to continue mechanical research in quantum DNA. The research could have far-reaching implications — from solar energy to medical diagnostics to designing faster and more energy-efficient computers.
On Sept. 28, the U of I unveiled an $18.9 million National Science Foundation grant. The U of I will host a consortium to conduct deep soil research — to explore how deep soils sequester carbon, and to see how farming practices affect deep soil systems. “Deep soils are probably one of the last research frontiers,” said Michael Strickland, a U of I associate professor of microbial ecology.
Two days later, the U of I secured another $4 million from the NSF, this time to research the use of 3D printers to convert wood waste into building materials. “With this technology, houses and commercial buildings can be made entirely differently,” said Michael Maughan, an assistant professor in the College of Engineering. “We can push past climate change, mitigate impact on our environment and make better use of the natural resources we have.”
On Oct. 18, Idaho State University received $1 million, through the U.S. Department of Health and Human Services, to study traumatic brain injuries in Idaho. “The state’s rurality and lack of access to health care and other resources place Idahoans at a higher risk for TBI compared to other populations,” said Russ Spearman, a senior research associate with Idaho State’s Institute of Rural Health.

Campus research tends to get an ivory-tower reputation, sometimes deservedly so. Tromp — who drops the catchphrase “blue-turf thinking” in nearly all of her public appearances — tries to emphasize an innovative research approach that gets undergraduate students into the process.

Tromp also touts the dollars: a record $55.7 million in research this year, up 59% over five years. Ultimately, money is the metric.

And Biden wants to tie the feds’ money to a boost in COVID-19 vaccinations.

‘A legal battle royale’

But can Biden do that?

Hodge thinks so.

The Arizona State law professor supports vaccinations, as a linchpin to keeping campuses open and safe. He also believes the legal precedent favors the White House’s side, especially when federalism is viewed against the backdrop of a global pandemic. So he believes the feds will prevail. Eventually.

“It’s going to be a legal battle royale around this,” he said. “This is at the core heart of federalism debates in this country, over which level of government’s going to dictate how we come out of this COVID pandemic.”

The battle will unfold in federal court, and in state capitols.

On Monday, legislative leaders agreed to reconvene at the Idaho Statehouse starting Nov. 15. When lawmakers return to session, a host of anti-vaccine mandate bills will almost certainly be on the agenda.

House Speaker Scott Bedke isn’t sure what the finished product will look like. But the Oakley Republican says the House GOP caucus is steadfastly opposed to vaccine mandates. A rule governing federal contracts, with potential impacts beyond campuses, will only galvanize Republicans.

“As people come to grips with how broad it goes … they are rightly outraged,” Bedke said Wednesday. “This is classic federal overreach.”

Each week, Kevin Richert writes an analysis on education policy and education politics. Look for his stories each Thursday. Due to the timeliness of the topic, this week’s analysis was published on Wednesday, Oct. 27.