Court Revives COVID Shot Mandate Lawsuit Against LA School District

• by Carolyn Hendler, JD

• Published June 17, 2024
• Federal & State Courts

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The 9^th Circuit Court of Appeals has reinstated a lawsuit filed by employees of the Los Angeles Unified School District (LAUSD) who argued that the school system’s COVID-19 vaccine mandate violated their constitutional and other rights. The Appellate Court vacated the lower court ruling in a 2-1 decision and remanded the case back to the District Court for further arguments.¹

The lawsuit, which was originally filed in November 2021 by California Educators for Medical Freedom (CEMF) on behalf of 1,000 LAUSD employees, alleged that the second largest school district in the country’s COVID policy violated the U.S. Constitution. A group of employees immediately filed suit against that school district after the COVID policy went into effect on Mar. 4, 2021. The day after the lawsuit was filed, LAUSD sent out a memo stating that employees could have the option of testing for COVID rather than getting the shot.²

LAUSD Drops and Then Reinstates COVID Shot Mandate

By July 2021, LAUSD represented to the court that the COVID shot mandate was no longer in effect.

Accordingly, the court dismissed the lawsuit stating that the case was no longer “ripe.” Because the school district’s policy changed to allow for testing in lieu of the shot before the vaccine mandate went into effect, the school district contended it would be pure speculation to suggest the mandate would be reinstated and an employee’s exemption denied, which could be a basis for a lawsuit.^{3 4}

A case must be “ripe” and contain an actual case or controversy for a court to issue a decision. A court cannot issue an opinion on hypotheticals. In a case that is “moot”, there is no longer a remedy available by the court because the matter has been resolved or is no longer applicable.⁵

Less than three weeks after the court dismissed the case for not being “ripe”, the LAUSD reinstated their COVID shot mandate without allowing a testing option. CEMF, together with Health Freedom Defense Fund (HFDF) and additional plaintiffs, filed another lawsuit against LAUSD arguing that the vaccine mandate violated employee’s liberty as guaranteed by the 14^th Amendment of the Constitution.⁶

District Court Sides With LAUSD and Dismisses Case

The District Court granted LAUSD’s request for a judgment on the pleadings (when a Judge decides a case solely based on the initial legal documents filed with the court⁷ and determined that LAUSD had a legitimate purpose in government requiring the shot and that no fundamental rights were violated by the vaccine mandate.

The lower court, relying mainly on an interpretation of the 1905 U.S. Supreme Court ruling in Jacobson v. Massachusetts, found that, even though the shot did not provide immunity or prevent transmission, it survived the rational basis test used to determine whether a government policy or law is constitutional. In order to pass a rational basis test, the court decides whether the government policy fulfills a legitimate state interest and has a rational relationship between the policy and the stated goals of the policy. The rational basis test is the least strict of the three tests used by courts to determine whether a policy or law violates the U.S. Constitution and is generally only used by the courts when a fundamental right is not involved.⁸

In Jacobson v. Massachusetts, Henning Jacobson, a Swedish immigrant and Lutheran minister, took issue with a Massachusetts Board of Heath law that demanded individuals get a second smallpox vaccination or be subject to a $5 fine. Jacobson took the case all the way to the U.S. Supreme Court alleging that the smallpox vaccination requirement violated his 14^th Amendment right to liberty and equal protection under the law. He argued that he and his son were genetically predisposed to negative vaccine reactions as evidenced by their serious reactions to previous smallpox shots.

The 1905 Supreme Court majority found that during smallpox epidemics, state legislatures have  the constitutional authority to impose mandatory vaccination laws to, “secure the general comfort, health and prosperity of the state.”⁹ The Supreme Court justices stated that the, “principle of vaccination” is “to prevent the spread of smallpox” and that, because the government’s legitimate interest in preventing the spread of disease superseded an individual’s liberty interest, the LAUSD COVID vaccine mandate did not violate the U.S. Constitution.¹⁰

COVID Shot is a Medical Treatment, Not a Vaccine

The plaintiffs in this case allege that the COVID vaccine mandate violates their fundamental right to refuse medical treatment.  At the heart of the matter is the plaintiff’s position, which is backed by statements made by the U.S. Centers for Disease Control and Prevention (CDC), that the mRNA COVID shots do not provide protection against SARS-CoV-2 infection or provide immunity to the recipient, nor do they prevent transmission of the virus like a traditional vaccine (for example, smallpox vaccine) is alleged to do.

Plaintiff’s attorneys argued that because the mRNA COVID shots were designed to only lessen COVID disease symptoms and theoretically prevent serious complications more likely to result in hospitalization and death, the shots are better classified as a medical treatment rather than a “vaccine.” The plaintiff’s attorneys maintained that he District Court effectively re-interpreted Jacobson by finding for the defendants and stating, “Jacobson does not require that a vaccine have a specific purpose of preventing disease,” when language in the  Jacobson decision strongly suggests that the 1905 Supreme Court justices based their ruling on the premise that smallpox vaccine does, in fact, prevent infection and transmission of the variola virus and produces community immunity when enough individuals are vaccinated.¹¹

Appellate Court Calls LAUSD Out for Trying to Manipulate the Court

The plaintiffs appealed the district court decision to the Appellate Court. In September 2023 and during tense oral arguments, when the defendants were subject to intense scrutiny and cross-examination, LAUSD officials stated on the record that they had no plans to withdraw the COVID vaccine mandate. However, that same day LAUSD’s Superintendent sent a proposal to rescind the vaccine mandate to the Board of Education, which approved the request a mere twelve days later.

At a Board of Education meeting, it was stated that LAUSD would continue to monitor COVID and, should the disease have a resurgence, the school district’s policy would be subject to change.¹² After they yet again changed their COVID vaccine mandate, LAUSD officials moved to dismiss the case by arguing that the change in their policy made the matter moot. Plaintiffs objected on the grounds that LAUSD only changed their policy in fear that the court would find in favor of the plaintiffs and the vaccine mandate could easily be reinstated it at any time.¹³

The Appellate Court took note of LAUSD’s changing COVID vaccine policy and stated that their pattern of withdrawing and reinstating the vaccine mandate was sufficient evidence that the case should be kept alive. The court found that, despite LAUSD rescinding it’s COVID vaccine policy, it was not clear that the school district would not, once again, reinstate their vaccine policy and, therefore, the case was ripe and not moot. The Appellate Court criticized LAUSD’s apparent attempt to manipulate federal courts by avoiding a negative ruling twice.

The court pointed out:

Litigants who have already demonstrated their willingness to tactically manipulate the federal courts in this way should not be given any benefit of the doubt. LAUSD’s about-face occurred only after vigorous questioning at argument in this court, which suggests that it was motivated, at least in part, by litigation tactics. (emphasis in the original).¹⁴

Appellate Court Finds District Court Misapplied 1905 Supreme Court Ruling in Jacobson v Massachusetts

The Appellate Court distinguished the Jacobson case from the matter before the court. The court explained that in the Jacobson ruling, the Supreme Court balanced plaintiff’s liberty interest in not being forced to take an unwanted vaccine against the government’s interest in preventing the spread of smallpox. The higher Appellate Court found that the lower District Court’s analysis, “misapplies Jacobson.”

In Jacobson, the Supreme Court clearly stated that mandatory vaccination was rationally related to, “preventing the spread” of smallpox. By mandating COVID shots which the CDC, by its own admission, states may only prevent the severity of infection and not stop the spread of the SARS-CoV-2 virus, LAUSD was forcing medical treatment on its employees, which was not what the Supreme Court justices in Jacobson held.

The Appellate Court held that the state’s interest in mandating the COVID shots differs from the smallpox vaccine at the center of the argument in Jacobson because the purpose of the COVID shots is not to stop the spread of disease but only lessen symptoms, and therefore, Jacobson did not apply. The District Court had held that Jacobson did not require that vaccines be administered with the intention of preventing disease and the fact that the shot allegedly protected LAUSD staff and students from severe disease symptoms was enough to pass the rational basis test so the policy was constitutional.¹⁵

Because it was reviewing a judgment on the pleadings, the Appellate Court had to take plaintiff’s pleadings that the COVID shots do not stop the transmission of the SARS-CoV-2 virus as true. The court acknowledged that as the factual record develops on this case, the fact that the COVID shots do not prevent transmission of the SARS-CoV-2 virus may or may not prove to be true and the outcome of the case may change.¹⁶

Concurring Opinion Finds Liberty Interest in Refusing Medical Treatment

Justice Collins, writing a concurring opinion, made the case that the District Court’s error exceeded misapplying Jacobson to the matter at hand. Judge Collins finds fault with the District Court failing to apply more recent Supreme Court decisions, which found that one has a liberty interest in refusing medical treatment. Justice Collins points out that the Supreme Court has found that the right to refuse medical treatment is a liberty interest protected by the U.S. Constitution and consistent with the history of the United States. Citing Washington v. Glucksburg (1997), the judge wrote:

[The] right of a competent individual to refuse medical treatment’[was ‘entirely consistent with this Nation’s history and constitutional traditions’ in light of ‘ the common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment’.¹⁷

Justice Collins distinguishes the U.S. Supreme Court’s decisions as it pertains to medical care that benefits others as certain vaccines allegedly purport to do by way of stopping the spread of disease and medication that may benefit (or harm) oneself. The latter inherently invokes a fundamental right to decline medical treatment. Because the Supreme Court has already determined that it is a fundamental right for individuals to refuse medical treatment that affects only oneself, LAUSD claim that the vaccine mandate was a condition of employment is not sufficient to survive the rational basis test and defeat a fundamental right.¹⁸

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