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Home » Bad Appeals Court decision on LAUSD vaccine mandate

Bad Appeals Court decision on LAUSD vaccine mandate


On 7 June 2024, a three-judge panel of the Ninth Circuit Court of Appeals revived a lawsuit against the Los Angeles Unified School District (LAUSD)’s employer COVID vaccine mandate that a district court dismissed. The two majority judges decided to send the case back to the district court for fact-finding because the plaintiffs made enough of a claim that the vaccines do not prevent transmission to be allowed to go to fact-finding on this and that if they are right, the deferential Jacobson standard does not apply.

The decision is badly reasoned for several reasons. But even worse, anti-vaccine activists misinterpreted it, claiming that the panel found that the COVID vaccines are treatments and not vaccines – which is not true.

low angle photography of brown building with los angeles led sign
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The LAUSD vaccine case

LAUSD went back and forth on whether to require a COVID vaccine for its employees. On 4 March 2021, LAUSD called on employees to be vaccinated. LAUSD employees then filed a lawsuit.

The district gave employees the option to test for COVID if they did not want the vaccine, but later – after school opening in August 2021 – rescinded that option. The district court, in this case, dismissed the case, and on 14 September 2023, the Ninth Circuit Court of Appeals heard oral arguments.

On the same day, the superintendent submitted a proposal to the LAUSD board to repeal the mandate, and on 26 September 2023, the board repealed it, finding the mandate was no longer needed. The dissent mentioned that during oral argument:

…counsel for Plaintiffs informed the court that, although the Policy remained in effect as of that date, there were rumors LAUSD would be rescinding the Policy. Consistent with those rumors, a detailed report proposing rescission of the Policy was submitted to the Board on the same day as oral argument.

This is important since detailed reports take time to write, and if it was submitted the same day, it had been prepared before the court decision – and if the plaintiffs’ counsel said there are rumors the mandate may be repealed, that goes against a causal connection between the oral argument and the repeal. That is important since one of the arguments against the plaintiffs is that the decision is now moot: there is no mandate to decide on. I will discuss that first, before going into the argument on the merits. 

Mootness

Unlike courts in some other countries, courts in the United States may not decide abstract cases, and can only decide real issues between real parties. The mootness doctrine is one of several doctrines to assure that – as is, for example, standing. The mootness doctrine means that courts should not decide cases where the issue has already been resolved – including if a party voluntarily changes the behavior challenged.  The court explained the rules that apply to this exception: 

Sometimes, however, voluntary cessation can moot a case. First, it must be reasonably clear that the challenged practice will not happen again. Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). Second, any effects of the alleged violation must be permanently reversed. Davis, 440 U.S. at 631. This is a “formidable burden” and “holds for governmental defendants no less than for private ones.” Fikre, 601 U.S. at 241.

The majority and the dissent disagreed on whether the case was moot. The majority thought that the LAUSD decision showed that it was strategically repealing the vaccine mandate to avoid a bad decision, and also that it could revive it.

The dissent thought that the district changed its behavior due to developments related to COVID-19, pointing out, as mentioned above, that there was already a report ready to go on the day of oral arguments and already rumors that the mandate would be rescinded, and also that “the record shows that LAUSD is not reasonably expected to reenact the Policy,” since the pandemic was an unusual situation that ended. 

I don’t know whether the LAUSD reacted, in part, to litigation in repealing the vaccine mandate. I have not followed events there closely enough, and I have diverse opinions from the majority and the dissent presenting different factual scenarios, without either of them having a chance for full fact-finding because appellate courts are not set up for that.

I don’t know who is right. But I think the dissent has a better argument that the district is highly unlikely to require COVID-19 vaccines from its workers again, given the general retreat from such mandates, and that, as with other mandate cases, this should have been mooted – and if it’s appealed to rehearing en banc, by the entire 9th circuit, or to the Supreme Court, there is a decent chance that it would be mooted.

lady justice and a gavel LAUSD vaccine
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The majority’s opinion on the merits

This is where things go off the rails. First of all, as the majority correctly points out, we are at the stage of a motion to dismiss. At this stage, the question is whether plaintiffs should have a chance to go to a full trial on their claims, including fact-finding. Because fact-finding has not yet happened, the court should assume, generally, that the plaintiffs’ claims are true, and give them the benefit of the doubt where possible. 

That does not mean, however, that the court needs to accept every implausible, unrealistic, counterfactual claim the plaintiffs make, though. The court can take judicial notice of proven facts, and other courts did that in vaccine mandate cases. Here is a California example. Here is another Ninth Circuit decision upholding a vaccine mandate and taking judicial notice of some evidence. 

What was the plaintiffs’ claim here? Quoting from the court’s decision, it’s:

Plaintiffs claim that the Policy interferes with their fundamental right to refuse medical treatment. Their complaint’s crux is that the COVID-19 “vaccine” is not a vaccine. “Traditional” vaccines, Plaintiffs claim, should prevent transmission or provide immunity to those who get them. But the COVID-19 vaccine does neither. At best, Plaintiffs suggest, it mitigates symptoms for someone who has gotten it and then gets COVID-19. But this makes it a medical treatment, not a vaccine.

The district court, relying on the famous case of Jacobson v. Massachusetts, which upheld a vaccine mandate,  found that the mandate is rooted in a legitimate interest under Jacobson and can stand. It also said that even if plaintiffs were right that COVID-19 vaccines do not prevent the spread of the disease, the policy can stand because it protects students and employees from COVID-19, that’s a legitimate interest, and that is enough. 

In its decision, the court’s majority (the dissent did not address this) made several statements. First, it said that if the plaintiffs are right, and I will get back to that, and the COVID-19 vaccines are “like a medical treatment” and “not a ‘traditional’ vaccine,” Jacobson does not apply. The court said that “Jacobson held that mandatory vaccinations were rationally related to “preventing the spread” of smallpox,” and vaccines that reduce symptoms do not fall under Jacobson’s public health rationale. The court described this as “’forced medical treatment’ for the recipient’s benefit.” One of the majority judges – Judge Collins – wrote a concurrence, a decision agreeing with the majority and adding to it, doubling down on the argument that the requirement is forced vaccination.

Then, the court went on and said that “[a]t this stage, we must accept Plaintiffs’ allegations that the vaccine does not prevent the spread of COVID-19 as true.” Note, the whole discussion above – whether Jacobson applies – depends on whether plaintiffs’ claims about the vaccines are true – and the court at this point is not ruling on this. The court goes on to say that “[w]e do not prejudge whether, on a more developed factual record, Plaintiffs’ allegations will prove true.” In other words, the court did not find, as some anti-vaccine sources say, that the COVID-19 vaccines are treatments. 

Despite this caveat, this is a very problematic, and not very well-founded decision on several grounds.

First, the court claimed the plaintiffs relied on the CDC to say the vaccine does not prevent transmission – but the CDC on its website says the vaccines reduce infection (they do not have to be 100% effective for a benefit), and someone not infected cannot transmit the disease.  

LAUSD vaccine mandate

I don’t know what the plaintiffs submitted, but the statements are not what the CDC said, and I expect the district will alert the court to that point. The court can take judicial notice of the CDC’s actual statements.

Second, COVID-19 vaccines are not a medical treatment, and that should be obvious on their face. They are not given to sick people. They are given to healthy people to create an immune response, to prevent people from getting covid-19, getting a severe case, or dying. That’s not a treatment, that’s a vaccine. Even if all they do is decrease the duration and symptoms, that could reduce transmission, so claiming there are no public health benefits is unwarranted.

No vaccine prevents infection – or transmission – 100% of the time. And that’s not required. Reducing infections is a public health benefit, and can be used to justify a mandate – that is part of what is behind requiring other imperfect vaccines that, nonetheless, decrease disease rates. 

Concerning both these arguments, the court at least treated anti-vaccine tropes as plausible, and it did not have to. This is an example of anti-vaccine misinformation infecting judges. 

Third, schools have an interest in having a healthy workforce and reducing the risk of disease for children and teachers. The nature of an employment relationship is that workplaces come with conditions – and employment in a school district is already highly regulated. Employees know they are going to be subject to changing rules. Imposing a workplace requirement in a public school, where we have teachers and children who are vulnerable, and where absences of many teachers can affect education, is a pretty clear and direct legitimate government interest, and Jacobson is very much the right standard. 

Fourth, a job requirement is not forced vaccination. Nobody is being held down and forced to vaccinate. Equating the two is just wrong. Quoting a decision by a panel of three Republican judges, it is fair to compare this to a university vaccine mandate: 

We assume with plaintiffs that they have a right in bodily integrity. They also have a right to hold property. Yet they or their parents must surrender property to attend Indiana University. Undergraduates must part with at least $11,000 a year (in-state tuition), even though Indiana could not summarily confiscate that sum from all residents of college age.

Other conditions of enrollment are normal and proper. The First Amendment means that a state cannot tell anyone what to read or write, but a state university may demand that students read things they prefer not to read and write things they prefer not to write. A student must read what a professor assigns, even if the student deems the books heretical, and must write exams or essays as required. …

If conditions of higher education may include surrendering property and following instructions about what to read and write, it is hard to see a greater problem with medical conditions that help all students remain safe when learning.

There is no violation of the right to bodily autonomy, and no forced medical treatment – or more accurately, forced vaccination – in saying that people who want to work in a school district with vulnerable teachers and students need to take a safe vaccine to reduce risk of disease. That’s just not it. Jacobson is the right standard, and it was misapplied by the court. And even if the court did not say what anti-vaccine activists say it did, and did not find that COVID-19 vaccines are treatment and not vaccines, it at least nodded in that direction, giving weight to anti-vaccine tropes.

LAUSD vaccine mandate conclusion

In spite of anti-vaccine misrepresentations, this Ninth Circuit panel did not find that COVID-19 vaccines are “treatments” and not vaccines. It did, however, give enough weight to that claim to revive the lawsuit and sent it back for fact-finding on that issue, and further, it implied that if a vaccine does not prevent transmission, the lenient Jacobson standard should not be used to assess a mandate under it.

Both things are problematic: COVID-19 vaccines are clearly vaccines, given to healthy people to create an immune response, and not treatment given to the sick to address symptoms. Further, there is enough evidence they reduce infection to suggest they affect transmission, even if not completely. In the school district context, reducing serious disease among teachers – which would reduce absences that could undermine education – could also be a valid reason for the requirements. Further, equating vaccine mandates in the workplace with forced medical treatment – as one of the judges did – is wrong on its face. 

This is a bad decision.

What will happen next? That depends in part on LAUSD. They can request an en banc hearing, and I hope they will, or appeal to the Supreme Court. I suspect that in either case, the case will be mooted – declared dead in the water because the LAUSD vaccine mandate has been repealed. But the district has to act for that, and I am worried that they will decide it’s not worth the effort for a dead mandate and do nothing – which will leave this bad decision on the books. 

We will see. 

Dorit Rubinstein Reiss
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