Will colleges and law schools go remote due to the COVID surge/Delta variant?


It feels like déjà vu all over again as we approach the beginning of the fall semester among talk of novel coronavirus and its impact on in-person learning — this time propagated by the Delta variant surge. The question that is being asked at a substantially growing pace now is, “Will universities, colleges, and graduate schools be forced into another purely remote learning experience if the current surge continues its upward trajectory over the next few weeks?”

Let me just start with a very standard (by now) disclaimer. No one at my firm, to my knowledge, has formal medical training, and none of us are virologists, epidemiologists, or infectious disease experts. We are writing this blog for three reasons: first, because over the past year I have spoken to a number of medical professionals in the above three fields about this topic at length; second, because there has been a rapid increase in questions to our firm regarding how colleges and graduate schools (law schools in particular) may react to a Delta variant surge; and third, because of the surge itself. I’m not sure how many people are aware of this, because I wasn’t until I started a new deep dive into the data, but the wave we are in now is the second-largest COVID wave we’ve had in the United States in the entire pandemic. It seems that there is no relief in the very short term. This as schools are about to reopen.

I’ll start with the universities and colleges. I believe that we will see some number of undergraduate institutions having to go fully remote. Note, I said “having” to go because I do not see any school leaning toward this option if they don’t have to. Rather, I think in the pantheon of roughly 4,000 degree-granting institutions, there will inevitably be some cluster outbreaks. I could give hundreds of examples from last year but just think of UNC in their first week of opening campus. They very much had hoped to be in person and were confident in their mitigation protocols but, within days, clusters broke out and the school had to shut it all down. It would seem likely that this could happen again this semester, especially at the undergraduate level with residential living, dining, and activities, and more likely for colleges and universities in high transmission zones. There’s no way, of course, of knowing how many schools this will hit, but we do know that the Delta variant is roughly 2 to 3 times more contagious did the original SARS-CoV-2 virus, and that it seems that younger-aged populations are also more susceptible to both contracting the virus and being hospitalized for it. This might be a factor of the virus now being more contagious, or it may be a factor of the older population groups having significantly higher vaccination rates.

Something worth noting is that a number of public state schools won’t be able to use key mitigation efforts (such as requiring vaccination to return to campus or mandating masks indoors) if their state legislatures have passed laws banning such mandates. I believe, at this current moment, those states banning at least mask requirements for publicly-funded schools are Arizona, Arkansas, Iowa, Oklahoma, South Carolina, Texas, Utah, Vermont, and Florida.* So, if there is even a hint of outbreak in public schools in those states, the only recourse those schools may have would be to shut down and go fully remote — in other words, they can’t first try mandating mitigation efforts like mask requirements.

Most graduate schools, including law schools, tend to have significantly fewer environmental concerns in respect to becoming high-transmission clusters. More to the point, they generally do not have dorm living, and even for those that do, the residential percentage of the student class is vastly smaller. And, for that matter, there tend to be more graduate students who live alone or with family. So if you came to this blog for what might happen with law schools, which is the area about which we can speak with the most confidence, the answer is that you will likely see mitigation efforts go back into effect that may not have been as much as a focal point going into the semester when school was planned a few months ago. Those mitigation efforts would include mask wearing, hybrid options (particularly for those at high risk or who have not been able to get vaccinated), and with private schools probably proof of vaccination for in-person learning (with very rare exceptions for populations that can’t be vaccinated). I spoke with a private law school this morning that believes 97% of their student body is currently vaccinated and that 99% will be when classes start. I think the only way you would see a law school move to purely remote would be if that school had a cluster break out or if public health officials were to force the school to go remote. I don’t expect either of these, because again I don’t see the same potential for widespread transmission at nearly the degree of probability as I do at the undergraduate level.

As a general matter, I don’t believe that we will see nearly the same proactivity toward remote learning again — and I should note that this is not a normative or judgmental statement, rather my observation and research — unless there are a number of cluster outbreaks as we saw before during less transmissible periods. Understandably, many people are worn down from almost a year and a half of the pandemic, and quite frankly even at the leadership level they are a bit worn down with decision making. This is not me saying they should or shouldn’t make evidence-based, health-first minded decisions, but I think many are a little bit more hesitant to pull the trigger on strict behavior control mechanisms and/or full remote learning, and therefore I don’t think we will see schools go remote unless and until we see cluster outbreaks.

In summary, it would seem like the appetite to go fully remote is greatly diminished both for financial reasons and likely the psychological reasons of COVID fatigue. Unfortunately, there are also a large number of colleges (and a smaller number of law schools) that are very much hamstrung in their ability to use the mitigation efforts such as mask requirements that they might have last year. This combination of remote learning wariness and diminished modalities to prevent contagious spread represents a precarious one-two punch. With both Delta variant cases and hospitalizations growing as a percentage of young adults (college and graduate school age students), it seems very possible that some universities, colleges, and perhaps law schools will be forced to go remote due to cluster outbreaks, although these will be less in number this semester because they will be reactionary and not proactive.

I’ll end on this note, which unfortunately is not optimistic. As of one hour ago, Union Academy Charter School in Monroe, North Carolina announced that, after its first week of school without a mask mandate, it already has 14 active COVID cases and has quarantined more than 150 students and staff. This is K-12 and not higher education, but it seems naïve to believe that none of the 4,000 colleges and universities in the U.S. will be hit and hit quickly by that same kind of spread. We can only hope that the numbers are kept to a minimum, and that colleges and graduate schools are given the ability to react nimbly should outbreaks occur.