photo by: Chris Conde/Journal-World File Photo

Strong Hall on the University of Kansas campus is shown on Sept. 13, 2018.

The University of Kansas said Tuesday it’s highly interested in a vaccine mandate for its students, but don’t look for one to be implemented any time soon.

A KU spokeswoman said the university still believes Kansas law precludes state universities from implementing vaccine mandates, and the recent FDA approval of the Pfizer vaccine does nothing to change that status.

“KU would strongly consider a vaccine mandate if it were an option,” KU spokeswoman Erinn Barcomb-Peterson told the Journal-World via email on Tuesday. “But it is not an option at this point given state law.”

KU for weeks has been saying state law limits its ability to mandate that students and staff receive vaccinations or provide proof of vaccination. However, some faculty members and others have questioned whether the state laws in question actually apply to KU and other state universities.

KU on Tuesday, however, showed no signs of reconsidering its legal analysis of the vaccine mandates. Some universities across the country began implementing a vaccine mandate after the FDA gave the Pfizer vaccine full approval, removing its emergency status label.

But Barcomb-Peterson said KU is not actively considering vaccine mandates in the wake of the FDA decision. She pointed to a pair of state budget laws that KU contends would place the university at great financial risk if it implemented vaccine mandates.

“The university would lose its ability to expend money — not only from the state general fund but also our special revenue funds like tuition, parking, housing, fire and rescue, etc. down to the smallest of funds,” Barcomb-Peterson said via email. “In other words, we would not be able to operate as an institution.”

The key provision in the state’s budget bill, Senate Bill 159, reads: “No state agency named in 2021 House Bill No. 2007, this or other appropriation act of the 2021 regular session of the legislature shall expend any moneys appropriated from the state general fund or from any special revenue fund or funds for each such state agency for fiscal year 2021 as authorized by chapter 5 of the 2020 Session Laws of Kansas, 2021 House Bill No. 2007, this or other appropriation act of the 2021 regular session of the legislature to: (1) Issue a COVID-19 vaccination passport to any individual without such individual’s consent; (2) require an individual to use a COVID-19 vaccination passport within this state for any purpose . . .”

A simple reading of that language suggests the Legislature is prohibiting the use of state funds to implement any vaccine passport program, which would be crucial to enforcing a vaccine mandate program. That opens a question of whether KU could require vaccination and vaccine passports for its students, as long as an outside entity that receives no state funding covered the costs of the program. In the case of the university, the KU Endowment Association has at times been considered an entity that is separate from the state and likely would have more than enough resources to cover any costs of the program.

Barcomb-Peterson, though, said “the totality of the language” in the budget bills does not actually create a path for KU to use outside funds to implement a vaccine mandate program. Instead, KU’s position is that implementing such a program would trigger provisions that would prohibit KU from spending any of its state or special use funds, even for items that have nothing to do with COVID or vaccination.

The Journal-World asked the university for any memo from its attorneys that summarizes how SB 159 impacts the university. Barcomb-Peterson said KU’s general counsel did review the bill as a matter of standard procedure, but no memo was produced. Barcomb-Peterson suggested other state universities had come to the same conclusion as KU on the vaccine mandate question.

“Related to this point, as you know, each of the other state universities are complying with the state law by not requiring vaccines or proof of vaccination,” she wrote.

Others have contended that KU and other state universities are not subject to the state law that KU is citing because KU is not a state agency. However, KU was unequivocal in its response to whether it considers KU to be a state agency under the definition of the law.

Barcomb-Peterson simply said yes, and pointed to Kansas Statute 76-712. It states, in part, “Except as otherwise provided by act of the legislature, the state educational institutions are separate state agencies and state institutions and shall be controlled by and operated and managed under the supervision of the board of regents.”

KU is strongly encouraging students to get vaccinated. Earlier this month it announced a program offering about $235,000 in incentives — including drawings for free tuition and other prizes — for students who voluntarily provide proof of vaccination.