COMMENTARY: University vaccine mandates - Religion trumps privacy

By A. Vince Colella

Recently, in two separate lawsuits, student athletes and employees challenged vaccine mandates at their respective universities. Coincidentally, the federal cases were both filed in the western district and assigned to Judge Paul Maloney. The opinions can be boiled down, with a nod to Charles Dickens, as “A Tale of Two Rights.”

On August 12, 2021, Western Michigan University (WMU) adopted a policy that called for the mandatory vaccination of student athletes. However, the university did not require the general student body to be vaccinated — allowing them to attend class, events and reside in dorms without penalty. Initially, the athletes were advised that they could apply for a religious or medical exemption. Accordingly, four members of the women’s soccer team submitted attestations claiming they were “Christian women who adhere to the teachings of the Bible and morally bound to follow the Universe and moral teachings of the Christian faith.” However, the university rejected the athletes’ request, citing a compelling interest in “taking action to avoid the significant risk posed to the intercollegiate athlete programs of a COVID-19 outbreak due to unvaccinated participants.” WMU further defended its position by claiming that prohibiting unvaccinated players from engaging in practice and competition was the “only effective manner of [preventing an outbreak]”

Consequently, on August 30, 2021, a lawsuit was filed alleging discrimination on the basis of religious beliefs in violation of the First and Fourteenth Amendments of the U.S. Constitution. Dahl et. al v Board of Trustees of Western Michigan University et. al., 1:21-cv-757 PLM-SJB. More specifically, the lawsuit challenged the WMU policy claiming that the student athletes had a right to reject government mandated medical treatment on account of their sincerely held religious beliefs. The Complaint sought an injunction to stop the university from barring their participation in practices and competition. On August 31, 2021, in its order and opinion granting the plaintiffs’ request for the restraining order, the court held that the policy challenge required a “strict scrutiny” standard of review. Finding in favor of the student athletes, the court determined that the vaccine mandate forces players to choose between their religion and right to engage in collegiate competition, thereby violating their First Amendment protections.

Similarly, in Jeanna Norris v Samuel Stanley, et. al. 1:21-cv-756 PLM-SJB, Plaintiff, a Michigan State University (MSU) faculty member challenged a university directive requiring all faculty and staff to be either fully vaccinated (or 1 of two doses) by August 31, 2021 or face disciplinary action, up to and including, termination. Norris — who had contracted and recovered from COVID-19 provided evidence that she had tested positive for the antibodies — brought suit on behalf of all employees who have “naturally acquired immunity to COVID-19 and decline the vaccine.” The complaint alleges that naturally acquired immunity is “at least as robust and durable (and longer lasting) as that attained by the most effective vaccines.” The complaint further alleges that persons who have naturally acquired immunity have a heightened risk of adverse side effects from the vaccine.

In her complaint, Norris argued that by forcing her to receive an unwanted and unnecessary vaccine, her Ninth and Fourteenth Amendment “privacy” rights had been infringed. However, faced with a request for injunctive relief similar to that in the WMU case, the court looked to the U.S. Supreme Court for guidance. In Jacobson v Massachusetts, 197 U.S. 11 (1905), a Massachusetts law was upheld that allowed cities to require vaccination against smallpox under the exercise of its police powers to protect the health and safety of its citizens. In his opinion, Judge Maloney reiterated that under Jacobson he is compelled to apply a “rational basis” standard to vaccine mandates. This is an important distinction as MSU would only need to show that its policy is neutral and generally applicable with mere incidental effect on the right of privacy. The university is not required to show a compelling government interest — only that the policy bears some relationship to a legitimate state interest. Furthermore, the court rejected Norris’ claim of “due process,” stating, “In Michigan it is presumed that the plaintiff is an employee at will.” Therefore, she has no proprietary interest in her employment at MSU. Finally, in Norris, the court rejected statutory claims under the Emergency Use Act (EUO), as the right to refuse a vaccine under the EUO was moot given the FDA approval of the vaccine on August 23, 2021.

The juxtaposition of these two decisions makes clear that religious objections to vaccine mandates outweigh privacy challenges. However, it also leaves university athletic departments with a Hobson’s choice: abandonment of vaccine mandates in favor of holding sporting events. It’s a decision that will no doubt be dictated by economics.
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A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.