Can universities demand tests and vaccination passports for campus access?

For the higher education sector, the second lockdown has been going on for far too long. The government hopes that, by the end of April, students will be able to return to campus for one class a week. There are several pilot tests assessing how to do that safely.

But will a negative coronavirus test be mandatory to be granted access to the campus? Well, that has not been set in stone yet. The Dutch Minister of Education, Ingrid Van Engelshoven, is reluctant about mandatory testing, and the Minister of Health, Hugo De Jonge, deemed the idea “not very practical”. But, in the meantime, he’s submitted draft legislation that would actually make some proof of testing mandatory.

Nightmare
“It is of the utmost importance that, wherever possible, students start attending on-campus classes”, says the chair of the Dutch National Student Association, Dahran Çoban. “We think that test passports can be helpful in achieving that objective. My worst nightmare is that, when the time comes, you will be able to attend Lowlands with proof of testing but not your lectures on campus”.

Çoban emphasised that students who – for any reason at all – aren’t able to produce proof of a negative test should still be able to attend classes on campus. “Then you will have to offer them an alternative”.

Hackles
Lyle Muns, chair of the Dutch Student Union (LSVb), has been emphasising the need to re-open higher education for months, but he thinks it’s too early for a discussion about obligations. “We still have no idea how things will be in September”, he said. “Instead of raising the hackles of a small group of students, let’s first try convincing everyone to get vaccinated and ensure that the testing system is functioning properly”.

In addition, he would like the situation to go back to normal at the educational sector, meaning no social distancing. “The idea is that the majority of students will have been vaccinated come September. For those who refuse, institutes of higher education have to make free rapid testing available”.

What about those who don’t want to be tested, or aren’t able to? “In principle, you shouldn't refuse access to campus to anyone. After all, you’re denying them access to good quality education. I think that’s going too far”.

Inevitable
Paul Zoontjens, Professor of Educational Law at Tilburg University, thinks it's “more or less inevitable” that students will eventually be asked to produce test and vaccination passports. That's related to the duty of care required of institutions, he explains.

“A pub owner is also responsible for his customers’ safety, to a certain extent. In the same way, the directors of these institutions are responsible for the safety of the students and staff while in their premises. That’s a strong argument for demanding that no individual be allowed to risk infecting other people. Those who aren’t allowed access have to be given an alternative method of teaching, like online education”.

Hit with a claim
There are also legal reasons, Zoontjens continues. He mentions the example of the class-action suit brought by thousands of skiers against the Austrian state Tyrol for failing to take measures to protect them from coronavirus. “You should avoid being hit with claims like this. So no one can say: you’re the reason why I contracted the disease. This could happen to any organisation in the future”.

Is it conceivable that students would launch such a claim against their university or university of applied sciences? “It’s not impossible”, Zoontjens replies. “I’m not sure what the chance of success is in such a case. But I think that many institutions would prefer to pre-empt such situations”.

Advice
The idea of only letting people who have been vaccinated or who can show a negative test result onto campus after the summer holiday is something that is still under discussion at a number of educational institutions. Han van Krieken, Rector of Radboud University, recently proposed such a measure in a blog, but the University softened that statement later on its website: “We’re not going to lock anyone out”. The subject is also on the table at the University of Groningen.

Just to be on the safe side, Maastricht University solicited the advice of three professors of medical ethics. Their opinion is expected by mid-April, Rector Rianne Letschert announced.

Another classroom
Paul Rüpp, chair of the Executive Board of the Avans University of Applied Sciences, thinks asking students to get tested is a very real possibility. “In my opinion, these things must be solved in a pragmatic way, keeping in mind the need to protect the majority. It’s a reasonable demand to make of our duty of care. Right now, for example, we have included in our code of conduct that not wearing a facemask and not maintaining social distancing can form reasons for removal from campus”.

Of course there have to be alternatives for those unwilling or unable to do so, added Rüpp. “They can participate in online education or, if necessary, sit in another classroom specially for people who don’t want to get vaccinated or tested. We now have so much experience in hybrid education that something like this shouldn't be a problem. Students are entitled to an education, but not necessarily to physical classroom teaching on campus”.

Press the button
He is hoping first and foremost that the results of the pilot tests currently being trialled for festivals and theatres (where social distancing can’t be enforced) will also help the educational sector move forward. “Because if it turns out we can admit more people thanks to self-testing, but we still have to observe social distancing, then we still haven’t solved the problem”.

The big question is: how long can we wait before crossing the Rubicon on this issue? September seems like a long way away, but all the lectures and seminars for the fall have to be planned now, Rüpp stressed. “Just to be sure, we’re going to organise our teaching so that we can revert from face-to-face to online by simply pressing a button. Because, in September, things may be quite different than we expect”.