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New York Colleges Are Forcing Students to Test Negative for COVID-19 Before Going Home for the Holidays. Is It Legal?

Jim Malatras, President of SUNY Empire State College, left, listens as New York State Governor Andrew Cuomo, right, speaks during his daily Coronavirus press briefing at SUNY Upstate Medical University on April 28, 2020 in Syracuse, New York. Cuomo detailed guidelines to reopening parts of New York State around May 15, 2020.

We’ve all seen the reports: college students are especially to blame for spreading coronavirus. Well, the State University of New York (SUNY) college system has taken its role of in loco parentis very seriously.

New York’s public university system is requiring students to test negative for the coronavirus before they can leave to spend Thanksgiving break with their families. Obviously, the measure is being undertaken in hopes of containing the spread of COVID-19 from the college campus to the community at large.

The SUNY system consists of 64 institutions of higher education, and serves over 140,000 students. The mandate, handed down by State University of New York Chancellor Jim Malatras Monday, requires that all students using on-campus facilities in any capacity test negative for COVID-19 within the 10 days prior to leaving campus.

Each campus is expected to develop its own testing schedule, with the aim that the test is conducted as close to a student’s departure date as possible. The schools are asked to submit their plans by November 5.

Via press release, Malatras said:

“As in-person classes and instruction come to a close next month, tens of thousands of students will travel across the state and country to be with their families and complete their fall courses remotely. By requiring all students to test negative before leaving, we are implementing a smart, sensible policy that protects students’ families and hometown communities and drastically reduces the chances of COVID-19 community spread. While we understand there is a lot of focus on plans for the spring semester, we must first finish this semester safely. I want to thank our students for the phenomenal effort during these difficult times as well as SUNY health policy experts for helping us create this guidance that ensures a safe wind down of the fall semester.”

But is this really legal? Can a government entity force students to test negative for COVID-19 before they will permitted to go home?

Maybe, although it’s unclear what power SUNY would really have to enforce its mandate.

First, let’s look at New York State’s quarantine law.

Under the law, a “public health authority” has the right to order “isolation” when that authority determines that it is “appropriate,” or “where symptoms or conditions indicate that medical care in a general hospital is not expected to be required, and consistent with any direction that the State Commissioner of Health may issue.”

Under the statute, the location used for such “isolation” may include “residential or temporary housing.”  A college campus would likely be “residential or temporary housing–but which students could be forced to stay there is another matter entirely.

Clearly, the statutory language appears primarily to contemplate a person with symptoms of a disease. So, students with visible COVID-19 symptoms would likely fall into that category. But what about an asymptomatic student who just refuses to be tested? Certainly, it is possible that such a student would fall within the category of those deemed “appropriate” to isolate, but that would be a broad interpretation of the law. Likely, the matter would turn on a court’s interpretation of that portion of the statute in response to a lawsuit brought by a student who refuses to test and insists on heading home.

From a purely constitutional standpoint, a measure requiring students to be tested before leaving campus could pass muster. The analysis would likely come down to whether a court believes refusing to allow students back into their home communities is too drastic a consequence for someone who fails to comply with testing mandates.

As Law&Crime has discussed before in relation to mandatory vaccine laws, the Supreme Court has said that governments must be reasonable with mandatory public health laws and not act “in such an arbitrary and oppressive manner as to justify the interference of the courts to prevent wrong and oppression.”

States have the primary responsibility to protect public health and safety. In the context of a global pandemic, courts have ruled–and probably will continue to rule—that containing the spread COVID-19 is an important government interest. The issue would be whether preventing a student from returning to family is too “oppressive” to constitute reasonable government regulation. A court ruling on the matter would turn on whether the court adopted “desperate times call for desperate measures” type logic, or whether it opted to consider mandatory isolation on campus too harsh a price to pay for minimizing risk.

Almost certainly, given the large number of families this mandate affects, we will see litigation on the subject. Law&Crime will keep you posted as the inevitable unfolds.

[image via Stefani Reynolds/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos