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Brian Lehrer: Brian Lehrer on WNYC. As you've heard on this show, Mayor De Blasio is adamant that New York City public schools will be fully open this fall. He has not committed to keeping any remote learning options.

Mayor De Blasio: I want everybody back in school in September, everybody.

Brian Lehrer: To be clear he didn't say yes, he didn't say no for families who want it. In last week's democratic mayoral candidates debate, I asked for a show of hands on whether the school should offer full time remote instruction. Nobody seems to want hybrid but full time remote instruction as an option for families that want that. Only two candidates raised their hands to say, yes, that should be an option, Eric Adams and Scott stringer.

What will need to happen for schools to open safely for every child? The fact that teachers and students 12 and older can now be vaccinated brings up another question that I asked in that lightning round on Thursday night whether the public schools will join the many colleges and universities in the area who are adding COVID-19 vaccinations to the group of vaccines that students are required to have to be allowed to attend classes.

Rutgers was the first as some of and others including SUNY and CUNY schools now have followed their lead. SUNY and CUNY have made it contingent on the vaccine getting full FDA approval not just the current emergency use by the fall. For Rutgers, it's not contingent on that. They've already made that decision. Students will have to get vaccinated or have a religious or medical exemption.

For what it's worth when I asked the candidates Thursday night whether fully licensed vaccines should be required of all students, five of them raised their hands, Katherine Garcia, Scott stringer, Sean Donovan, Diane Miralis and Andrew Yang. The other three did not. That was Wiley, Maguire and Adams but none of them raised their hands for teachers to have a vaccine mandate. Even the five candidates who said, yes, students should have that mandate, none of them said teachers should.

Let's talk about some of the issues around school reopening and COVID vaccine mandates and remote options. I am joined by WNYC and Gothamist education reporter Jessica Gould who has been following this and for legal guidance we'll be joined in a bit by healthcare law and policy expert, Allison Hoffman a professor at the University of Pennsylvania. Hey, Jess.

Jessica Gould: Hi, how are you?

Brian Lehrer: Good. How far are we from being fully open right now in broad terms? Are classrooms at their socially distanced capacity, are teachers in the classrooms? What's the status here on May 17th?

Jessica Gould: All schools are open. Most are as close to capacity as the interest from students and their families allow. There are more teachers teaching physically in classrooms now and there are more kids in classrooms but it's still only a third of the school system that has chosen to come in, the public school system to come in and in person. There's a huge population that are still opting to be remote through the end of the year. The question is what will it take to fit those students back and to entice those students back?

Brian Lehrer: Why is the remote learning option controversial? The mayor doesn't want to commit to it. The mayoral candidates are divided on whether that should be an option. Why is this not an easy yes or no?

Jessica Gould: The first thing that comes to mind for me to answer that question is the logistics. People choose their schools. Parents choose the schools for their kids because they like the school but it's not clear whether all schools will be able to have a remote option if it comes down to staffing largely. Will that be a centralized remote option? Will it be geographic? That's not clear yet.

I think the other thing is that as you've heard from the mayor on your show so many times, he's really trying to do everything he can to push people to come back in person. I think having a remote option available in addition to the logistical issues also could entice more people potentially to opt not to come to school which is not what the system wants right now.

Brian Lehrer: A lot of teachers have medical waivers to work from home. Do those expire with this school year?

Jessica Gould: My understanding is that it's going to change, that the medical waivers that they have for now, I think go through the end of the school year. Then there's going to be some new framework for granting medical waivers, potentially based on whether the vaccine could be effective for you. If you're immunocompromised and the vaccine is less likely to be effective, then you may be granted a waiver but it's not going to be as broad strokes as it has been up until now so that's changing.

I was talking to a principal last night and she was saying that without knowing what the status of medical waivers are, it's hard to know how to plan, how to plan for which teachers, how many teachers she needs to hire, additional teachers, and how many will be coming back or not. These are decisions that are typically made at this point in the school year, looking towards next year. There's a lot of concern about that uncertainty.

Brian Lehrer: Listeners let's take a little informal and official thoroughly unscientific Brainlab show. Call and poll on this on these two questions that I asked the Thursday night's debate that had the mayoral candidates divided. Number one, should there be a full-time remote learning option in the fall in the New York City public schools? Does anybody have a strong yes or no on that? 646-435-7280.

The other one as the candidates were divided on that one, only Stringer and Adams said, "Yes, there should be a full-time remote option." The other one they were divided on was whether teachers-- I'm sorry, whether students should be required to get the vaccine? That was a five to three split. Should students returning to New York City public schools or frankly whatever public school system you're involved within our area should students at the, let's say high school and down level, whichever ages already have full use authorization, when that comes about for those age groups should they be required to get the vaccine to return to the classrooms? 646-435-7280.

What about that third piece that they weren't divided on at all? Should teachers under those circumstances full use authorization be required to get the vaccines in New York City or whatever school district you're in? All the mayoral candidates, perhaps knowing there are like 80,000 teachers and many of them fold, all the mayoral candidates said no. Even if students should be required, teachers should not be required. Where are you on any of these things? Listeners, 646-435-7280. Before we go to our other guest, Jess, and take some phone calls, what do you see as the mayoral politics of those answers?

Jessica Gould: One thing that I wanted to note is that it's actually not up to the mayor whether students and staff are vaccinated. At least historically, the city has deferred to the State and the State makes the rules on vaccinations. The last I checked with the city just a couple of days ago that was still the plan that it follows the State rules.

The State does require vaccinations in general for students. That's nothing new. Once the vaccine is fully approved it's likely that COVID could be one of those. It has not required vaccines of teachers and staff in the past. This came up during the measles outbreak. There was a desire by many for the state to require that but it's actually not in statute.

Brian Lehrer: It's not up to the mayor, it's up to the State but the mayor, of course, certainly can have an opinion on it and the candidates have their various opinions. Joining me now with more about vaccines in the law, let's add to this conversation, University of Pennsylvania law professor Allison Hoffman, who specializes in healthcare law, and policy. Professor Hoffman, thanks so much for some time today.

Allison Hoffman: Hi, Brian. I'm delighted to be here with you.

Brian Lehrer: I know there's a gray area between COVID vaccines that have been granted or there is a gray area because COVID vaccines have been granted emergency use authorization and are not yet fully licensed by the FDA but where does the law stand when it comes to that difference?

Allison Hoffman: The piece that is clear under the law is that States can clearly require vaccination to protect the public health. All States require vaccinations for school attendance. They have different kinds of exemptions from those requirements. The question of whether a vaccine that is available under an emergency use authorization is legal is a tougher question because the statute is just silent about it. If you look at the language in the statute, the emergency use authorization law, that allows the vaccine to be available right now. It says that people have to be informed of the option to accept or refuse administration of a product and of the consequences if they refuse administration. There's not much explanation in the legislative history or anywhere else beyond that.

People have been trying to try to figure out if that language around accepting or refusing, first of all, implies that people should be able to refuse and what are consequences or health consequences, or might they include, for example, the inability to return to school as a student or a teacher. Because the law isn't clear on that, it's impossible to know exactly where the courts would come down on it.

As a lawyer and a law professor, when we're looking at these kinds of questions, we think about things like, well, if there were ever a compelling public health reason to mandate a vaccine, this is probably it, but you have to balance that against questions of individual liberties and how this particular court might come down on that. It's really hard to know. If a case like this, if a mandate were challenged and made it all the way to the Supreme Court, it's difficult to know exactly how this court would come down on that question.

Brian Lehrer: Right. I mentioned in the introduction that SUNY and CUNY say, "Only when emergency use authorization becomes full authorization by the FDA, would they require students to get vaccinated." I don't want to misrepresent Rutgers' position. I said in the intro that Rutgers doesn't seem to be looking at that distinction. They're just going to require it, period but that may not be true.

My producer told me, "We're not actually sure. That Rutgers may be assuming that full use authorization will come by the fall." It'll be a moot point, but do you have an understanding? Because many colleges have basically told their students, "You're going to have to be vaccinated if you want to come onto campus this fall." Do you know if they're doing this with the assumption that there will be full use authorization by then, or are they doing it either way? For you as a law professor, does that matter under the law?

Allison Hoffman: If the vaccine has been granted full licensing approval, then it's clear that the schools, that the universities, that employers, that others can mandate vaccination. That becomes a less difficult legal issue. They still have to make exemptions for things like disabilities under the Americans with Disabilities Act or for religious objections, they likely have to make some exemptions, but the legal authority becomes pretty clear once that full licensing authority is granted. The colleges might be operating under that assumption. Many colleges across the country, across many States, have said that they're going to require their students to be vaccinated in the fall.

If we think about what the timeline looks like, Pfizer has already applied for that full biologic license application which is that full authority that we talked about. They've applied for it under a priority review request, which usually means that that approval will come more quickly. In normal circumstances, it means six months rather than 10, but a lot of people are hypothesizing it'll come even more quickly in this case, which could very well mean that by the time students return to school in the fall, that Pfizer for age 16 and up, including all of those college students has that full authority already.

Brian Lehrer: Does that mean though that we may see campuses where students with Pfizer vaccines are required to have them to come on campus, but not students with Moderna or Johnson & Johnson vaccines?

Allison Hoffman: No. I think students who have any vaccines will be allowed on campus. The schools have already said that they're going to allow proof of vaccination with any of the currently approved vaccinations counts and also vaccinations for students coming from other countries that have been-

Brian Lehrer: Will they be allowed?

Allison Hoffman: -approved by the World Health Organization.

Brian Lehrer: They will be allowed on campus, but will they be required to have the vaccines? If just Pfizer is approved for full years authorization, can they require the vaccines? Yes, I guess they can require the vaccines and then accept--

Allison Hoffman: They could require the vaccines. The students can choose.

Brian Lehrer: Accept the others.

Allison Hoffman: Yes. Moderna, I should say is right behind Pfizer. From what I've heard, it seems like they're going to apply for full authority any day now. It could be that two of our three vaccines have full authority at that point or close to that point.

Brian Lehrer: Let me get a couple of phone calls in here. Morgan in Brooklyn, you're on WNYC. Hi, Morgan.

Morgan: Hi, Brian. Thanks for taking my call. My comment was that essentially the comments being that we're not going to make it to herd immunity and that that's no longer the goal, the goal is management, then we see the city moving towards opening. It's essential that we have all of our children going to school in-person in the fall.

Brian Lehrer: Do you have an opinion on whether they should be required to get vaccines if we're not going to achieve herd immunity?

Morgan: I agree with Mayor de Blasio as the mayor last Friday or the Friday before. The mandates are just going to discourage participation. Given the cases where they have been through the schools, I think it's-

Brian Lehrer: So no. Morgan, thank you very much. Ali on the Upper West Side, you're on WNYC. Hello, Ali.

Ali: Hi. How are you, Brian?

Brian Lehrer: Good. Thank you.

Ali: Longtime listener. Thank you for taking my call. I really showed up to understand when the narrative comes up about the teachers and their ability to opt-in or out, why they are treated any differently or have a sense of entitlement that affords them to keep their jobs, their employment, all the while, not having to do their jobs. MTA workers, doctors, nurses, police officers, waiters, waitresses, Amazon delivery people all have to show up. When you talk about teaching, it's an essential service and yet we constantly coddle them, making them feel that they're above everybody else that they don't have to show up and yet they're entitled to opt-in or out. It's very simple, be fired or quit.

Brian Lehrer: Opt-in or out. Ali, thank you. Please call us again. I'm going to leave it there for time because we're going to run out of time in the whole show in a minute. Jessica, what are the opt-out criteria because not any teacher can just choose to opt-out? There are certain medical or age standards right now that they're deciding whether they'll still apply in the fall.

Jessica Gould: I'll be honest with you. I haven't checked the medical accommodation requirements since the fall when we first started talking about it so I don't have it on the tip of my fingers. I'm going to just budget a little bit and I hope this is right, but I think that in addition to your own fragile health for having preexisting conditions also, I think there was accommodations made on a case-by-case basis if you have a dependent or somebody in your family who's immunocompromised. I think it was mostly, do you have one of the preexisting conditions that makes you more vulnerable? There's also pregnancy in there, but I'll have to check with you and get back to you the next time to have it fresher and not my fingertips.

Brian Lehrer: Jess, I just want to say how much I appreciate it when there is the rare instance that a guest says, "I don't know," because so many people will just fake it and that's much worse. Santos in Park Slope, you're on WNYC. Hello, Santos.

Santos: Hi. Nice to speak to you again, Brian. Listen, it seems to me when I was in grade school in the-- I'm a student here in the city, as a student and as a teacher, a retired teacher now. I remember the polio vaccines we all got it. Unless there's a medical exemption, I think that everybody should. Is this disease less virulent than any of the others that we are required to have when we go to school? I kind of liken it to eminent domain. Look, if there's a building here, we're building a road, sorry, your building's going and we're putting in the road.

Brian Lehrer: That in and of itself is very controversial so it may or may not be the best analogy. Santos, thank you very much. We just have 30 seconds in the program. Professor Hoffman, as a law professor, what about the law on that last point?

Allison Hoffman: I think that once we have full authority the law is clear, but I want to go back to Morgan's point, which is that if we're trying to get as many people vaccinated as possible, mandates may not be the way to do it. Maybe making vaccines easier and encouraging people to get them is more effective than mandating.

Brian Lehrer: Allison Hoffman, professor at the University of Pennsylvania Carey School of Law, WNYC and Gothamist education reporter, Jessica Gould, thank you so much both of you for joining us today.

Jessica Gould: Thanks.

Allison Hoffman: Thank you.

Brian Lehrer: An interesting conversation started out of that debate on Thursday night, about mandating vaccines for students or teachers or allowing full-time remote learning as a separate question in the New York City public schools. We leave it unresolved.

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