heterodox: the blog
When Ethicists Opt Out: The Failure of Campus COVID Mandates
COVID-19 mandates on college campuses have failed to stop the spread of the virus – but they’ve succeeded at slowing the spread of ideas. Viewed as an ethical dilemma, COVID-19 mandates negatively impact personal privacy, free choice, viewpoint diversity, and trust – and ethicists are opting out.
Cybernetic theorist Stafford Beer posited that “the purpose of a system is what it does.” Often shortened to POSIWID, this maxim of systems thinking prompts us to evaluate a system based on its actual results rather than on its claims or intentions. Using this principle, what is the purpose of COVID-19 mandates at colleges and universities? What do the mandates do?
Broadly encompassing masking, vaccination, testing, contact tracing, social distancing and de-densification, and quarantine and isolation requirements for students and personnel, the stated purpose of COVID-19 mandates is to prevent the spread of SARS-CoV-2 on college campuses and in their local communities. But the evidence is clear: No college campus has achieved the elusive COVID-Zero status, and COVID-19 mandates have failed to stop the transmission of the virus on campus. That is not what they do.
What COVID-19 mandates actually do is offer students and personnel a Hobson’s choice: to involve the university, as employer or educator, in one’s personal health decisions, or to leave the university. COVID-19 mandates accomplish this by compelling the disclosure of personal health data, including testing or vaccination status, and the locational and associational data necessary for contact tracing. Mandates further interfere in health decision-making by requiring medical interventions — masking, testing, vaccination — sometimes going so far as to specify they be performed by a health care provider selected by the institution. COVID-19 mandates are enforced by measures that include expulsion from both in-person and online classes for students, and suspension or termination of teaching and research duties for faculty. Viewed through the ethical lens of autonomy, COVID-19 mandates upend a century of norms around informed consent, coerce conformity, and banish the noncompliant, with profound implications for viewpoint diversity in the academy. COVID-19 mandate policies must be rolled back, and where they persist, faculty members should question their efficacy and resist their enforcement.
Vaccine Uptake and Viewpoint Diversity
Higher education is a leading industry for COVID-19 vaccination uptake. Some institutions report a greater than 90% vaccination rate among students and staff, which is significantly above the U.S. national average and also exceeds the consensus threshold for community immunity. The Chronicle of Higher Education identifies more than 1,000 colleges that mandate COVID-19 vaccination for students or staff. But in the months leading up to these mandates taking effect, many institutions fretted about rates of noncompliance among students and staff alike. Such delays suggest that a portion of campus constituents wrestled with the decision to submit to test-or-vaccinate protocols and to disclose personal health information.
Vaccine uptake correlates with many factors, both demographic and perspectival. Prior research applying moral foundations theory to vaccine uptake found that personal values related to purity and liberty predicted resistance to mandatory vaccination. In its map of institutions with vaccine mandates, the Chronicle chose to indicate the presidential election outcomes for each state, belying a vaccination-viewpoint correlation that suggests that mandates will further reinforce the liberal skew of campus constituencies and intellectual climates. And while campuses offer some degree of exemption from vaccine mandates for medical or religious reasons, requests for exemptions are generally subject to approval and must satisfy often narrow guidelines. Vaccine mandate exemptions do not permit dissident views, irrespective of evidence or reasoning, regarding COVID-19 vaccination, the efficacy of alternative preventive and therapeutic interventions, or the ethics of freely given informed consent, doctor-patient confidentiality, or personal privacy. Consequently, vaccine mandates induce some individuals to either acquiesce to medical interventions in contradiction with their reasoning about the personal and public benefits and risks of COVID-19 vaccination, or accept the consequences of their viewpoint-based noncompliance.
COVID Mandates as an Ethical Dilemma
For some academic ethicists, the Hobson’s choice of COVID-19 mandates became a Faustian bargain: We could keep our teaching appointments but must forsake our areas of expertise in the process, forbidden from practicing what we preach. Aaron Kheriaty, M.D., was the director of the medical ethics program at UC Irvine for nearly a decade when he was ultimately fired for noncompliance with UCI’s vaccine mandate. Kheriaty, who is suing the institution for an exemption recognizing infection-acquired immunity, was a highly regarded clinical instructor whom the university relied upon to design and communicate its hospital’s pandemic response:
Everyone at the University seemed to be a fan of my work until suddenly they were not. Once I challenged one of their policies I immediately became a “threat to the health and safety of the community.” No amount of empirical evidence about natural immunity or vaccine safety and efficacy mattered at all.
Kheriaty has since written about the coercive nature of COVID-19 mandates, which deploy vast institutional power against individuals with little recourse, diluting liability through bureaucratization that ensures diffusion of responsibility.
Dr. Julie Ponesse was relieved of her appointment as a professor of ethics at Huron College, University of Western Ontario. After two decades of teaching medical and business ethics and ancient philosophy, Ponesse refused to comply with mandatory vaccination or to disclose her personal health information to the university. In a viral video delivering a first and final lesson on the ethics of coercing medical procedures for her fall 2021 first-year students, Ponesse explains:
My job is to teach students to think critically … My school employs me to be an authority on the subject of ethics … and I’m here to tell you it’s ethically wrong to coerce someone to take a vaccine.
Ponesse has since described the use of behavioral profiling to nudge beliefs, decisions, and actions, leading to the accelerating transformation of the ethical foundations of public health and liberal democracy. Ponesse also explains that mandates that require proof of vaccination ultimately require disclosure of private health information, normalizing the loss of bodily integrity, the erosion of informed consent, and the sacrifice of personal privacy.
I am a librarian and privacy ethicist and was placed on leave for declining to share medical decision-making power or personal health information per the requirements of my university’s COVID-19 mandate. In prepared remarks to the faculty subcommittee that reviewed and upheld my sanctions for noncompliance, I argued that COVID-19 vaccine mandates do far more than compromise medical data privacy. They implicate privacy harms across the spectrum of human experience, maligning our individual identities; distorting our beliefs, values, thoughts, and decisions; negating our bodily integrity and right to concealment and confidentiality; intruding on the intimacy of doctor-patient relationships and on the family as a site of medical decision-making; coercing us to discuss personal health matters with colleagues and superiors; and preempting our ability to keep such matters private. This erosion of privacy culture poses real threats to open inquiry and viewpoint diversity, not only for those of us who are severed from the scholarly community for our noncompliance with COVID-19 mandates but for all those who remain under conditions that exert a chilling effect on your thoughts, speech, and actions.
Exiting the State of Exception
In his collection of essays on the politics of the COVID-19 epidemic, political ethicist Giorgio Agamben critically analyzes the state of exception that arises from a sense of emergent crisis, and the suspension of normalcy it enables. He unflinchingly exposes the academy’s failure to quell irrational fear and propaganda with evidence and reason, concluding, “It is certain that our universities had reached such a level of corruption and specialistic cluelessness that it is almost impossible to mourn their loss.” While universities have not meaningfully served as sites to interrogate the evidence or ethics of COVID-19 mandates, I prefer to see them reformed into the kinds of institutions where ethicists can once again work in accord with the intellectual contributions of our discipline.
The redemption of our institutions begins with individual ethical choices. In Agamben’s formulation, “The measure of one’s abdication of ethical and political principles is very simple: it is a matter of asking oneself what is the limit beyond which one is unwilling to renounce those principles.” Put another way, what line are you unwilling to cross, and how will you know when it has been breached? This ethical situational awareness will provide the fortitude we all need to make sound judgments, take moral action, and challenge incremental encroachment on basic human rights in the face of future crises.
Two years into life with COVID-19, it is time to declare the emergency over, bringing to an end the state of exception that permits the enforcement of COVID-19 mandates. As some institutions officially walk back their COVID-19 policies, others will rely on the principled disobedience of those who are tasked with their enforcement. A reexamination of Stanley Milgram’s work on obedience by Matthew Hollander finds that study subjects who defied the experimenter’s orders “take advantage of a greater range of the full continuum of possible resistance strategies,” leading Hollander to conclude that “the ability to disobey toxic orders is a skill that can be taught like any other.” Informed by Holland’s analysis, these skills include abilities squarely within any academic’s wheelhouse: asking questions, articulating observations, and proposing actions. We can begin by querying institutional authorities on the evidentiary basis and legitimacy of COVID-19 mandates. We can further inform authorities of how mandates harm people, chill inquiry and expression, and dilute viewpoint diversity in conflict with the mission of the academy. And we can explicitly call for an end to mandates (what Hollander refers to as “stop tries”).
Speaking with the three faculty colleagues who validated the process by which I was put on leave, I demonstrated how our institution’s COVID-19 mandates conflicted with academic freedom and professional conduct policies in my case, and proposed jury nullification as a model by which similarly situated faculty could relinquish their role in COVID-19 mandate enforcement on both ethical and policy coherence grounds. Even more important, faculty should intercede on behalf of students who have been ensnared in COVID-19 mandates, which sacrifice the normal campus learning experience, and with it norms of autonomy, privacy, and identity formation.
What is the purpose of COVID-19 mandates in the academy? COVID-19 mandates compel campus constituents to sacrifice personal privacy and coerce medical decisions, all while chilling inquiry and corrupting the academic community in the process. If the purpose of a system is what it does, then the purpose of COVID-19 mandates in higher education is to supplant open inquiry with unthinking compliance. And the ethicists are opting out.
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