University of California flu vaccine order – anti-vaxxers court challenge

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This article regarding the University of California flu vaccine executive order, and a subsequent anti-vaccine activist court challenge, was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.

An anti-vaccine organization brought a lawsuit against the University of California’s Executive Order “strongly recommending” flu vaccines for most students, faculty, and staff and mandating it for a specific sub-set. With one possible exception that I am less familiar with, but that the University responded strongly to, the complaint’s claims are unfounded and should be dismissed.

Background on University of California flu vaccine order

At the end of July 2020, the University of California’s President issued an order strongly recommending seasonal flu vaccines for students, faculty, and staff and mandating that students, faculty, and staff living, learning, or working on UC premises get the flu vaccine by November 1, 2020.  The order offered a medical exemption and initially offered employees a religious exemption, but not students.

The University of California flu vaccine Executive Order justified the measure by reminding readers of the painful cost of COVID-19 in California alone, the dangers of influenza, and the fact that influenza vaccination is a “safe and effective” way to prevent flu, reducing hospitalization, ICU admissions, and other harms, and the additional risk that during COVID-19 influenza may overwhelm the healthcare system.

On August 27, 2020, the anti-vaccine organization Children’s Health Defense, together with Attorney Rick Jaffee, who frequently represents anti-vaccine doctors and others who reject evidence-based medicine, filed a lawsuit against the order, requiring a preliminary injunction.  They have engaged in recruiting plaintiffs for about two weeks and ended with five plaintiffs, two students, two employees, and one faculty member from UCLA law school.

The lawsuit challenges the validity of the order because it violates the University of California’s (UC) own shared government rules, claims it is unconstitutional because it unreasonably limits rights, and argues that it is unjustified because there’s no evidence the flu mandate will help with COVID-19, and (based on the highly problematic anti-vaccine claim that flu vaccines increase COVID-19 deaths,  a claim that studies do not support) that it might even harm.

Initially, the lawsuit also claimed that by offering employees a religious exemption but not students, the order violated equal protection. That is not a particularly strong claim, but I will not address it here– the new University President, President Michael Drake, revised the order on September 29, 2020, to offer a religious exemption to students.  In response, the plaintiffs’ lawyers claimed that the religious exemption uses “religious inquisition courts” and is unconstitutional.

I do not know enough about UC bylaws, but I will summarize the UC’s response, and it seems convincing. The other claims, however, are unfounded, and several problematic aspects of the lawsuit weaken it further.

The UC Regents Claim

The plaintiffs claim that the President had to consult with the University Senate before issuing the executive order. Specifically, the plaintiffs claim that:

Bylaw 30 provides, inter alia, that the president is “expected to consult with the Academic Senate, consistent with the principles of shared governance, on issues of significance to the general welfare and conduct of the faculty.” (emphasis added) Compelled vaccination, which (1) is not directly related to the pandemic, (2) has resulted in the payment of almost $1 billion in federal compensation, 13 (3) has been shown to increase the risk of harm from some coronaviruses, (4) has been demonstrated to be ineffective in over half of its recipients, and (5) can actually spread the flu — is surely an issue of significance to the general welfare and conduct of the faculty. 

In a later submission, the plaintiffs also allege that “one person made the recommendation for the mandate (Dr. Byington) and one person decided to do it (former President Napolitano) without the formal input of the Academic Senate or any other stakeholder.” (PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION, submitted October 5, 2020).

I am not well versed in the UC’s internal regulations, and honestly, do not have good reasons to make the efforts to learn them in the depth I would need. The University’s lawyers responded to this claim with three arguments that sound plausible:

  1. The University alleges that plaintiffs lack standing to complain about not going through the Senate: the university is a self-governing body and under the California Constitution Art. IX s. 9,  is a self-governing body, and the judiciary cannot intervene in its internal government – even judicial intervention is limited. None of the plaintiffs is a member of the Senate, so they can’t complain about taking the Senate’s authority, and even if one of them was, the regents can ratify the President’s actions, and it’s not for the Court to intervene and enforce internal rules.
  2. The relevant rules, alleges the University, gives the President the authority to issue the order. The respondents say that:

Contrary to Plaintiffs’ suggestion, the language they quote from Bylaw 30 relates to the President’s role as “academic  leader” of the University (as distinguished from her other roles vis-à-vis the University) and, even then, only discusses an “expectation” of consultation with the Academic Senate, not a requirement: “The President serves as the academic leader of the University, and is expected to consult with the Academic Senate, consistent with the principles of shared governance, on issues of significance to the general welfare and conduct of the faculty.

In essence, the respondents are arguing here that the bylaw gives the President other powers to run the university that does not require Senate approval, and even the specific language quoted does not create an enforceable obligation. Here is the bylaw

Addressing another of the cited sources of authority, respondents state that “Standing Order 100.4(a) supports the President’s authority to issue a vaccine directive, in that it provides that the President  “shall have full authority and responsibility for the administration of all affairs and operations of  the University,” subject to exclusions not relevant here.”

In response to the claim of lack of consultation, respondents point out that the President engaged in broad consultation with a large number of stakeholders. Respondents explained that:

UC considered for months whether to require the UC community to receive the flu vaccine this year as an additional measure to enhance the safety and public health of students, faculty, and staff at UC facilities. (Id. ¶¶ 26-28.) Like COVID-19, the influenza virus is also a highly contagious serious illness that is transmitted in ways that are similar to COVID-19, thereby increasing the need to prevent and manage both illnesses simultaneously. (Id. ¶¶ 16, 22.)  The University’s process included consideration of the recommendations of UC’s public health experts and administrators as well as public health guidance from the CDC and CDPH.  After consultation with senior UC leadership including University Chancellors, then-President Napolitano determined that the flu vaccine is essential this year for students, faculty and staff present on UC premises, to protect members of the UC community from avoidable safety and health risks and to reduce the overall burden of the confluence of flu and COVID illness on health services…

The University of California flu vaccine order was certainly not “one doctor recommended, and the President agreed.”

General Constitutionality

The barrier plaintiffs face for this claim is that for over a century, courts have consistently upheld immunization mandates generally, and immunization mandates in educational facilities generally. Much of this jurisprudence drew on the seminal case of Jacobson v. Massachusetts (1905),  in which the supreme court upheld a state mandate criminalizing non-vaccinating, with a $5 penalty.

But this has been upheld by many courts since, and in the years of 2017-2018 two California courts of appeals upheld k-12 school immunization mandates, stating that “compulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases.”  Universities are not similar, but many of the same claims apply.  Plaintiffs are trying to counter this extensive jurisprudence with a number of claims, none of which is very convincing.

Distinguishing Jacobson – plaintiffs, as have challengers of California’s school immunization mandates (and New York school immunization mandates) are trying to claim that the fine in Jacobson is different than prohibiting students from attending schools or employees from their workplace. That claim was rejected in the challenges to school immunization laws, correctly, in my view.

First, shortly after Jacobson the Supreme Court, in Zucht v. King, relied on Jacobson to uphold school immunization requirements, showing that this is a permissible consequence under the law.

Second, Jacobson itself drew extensively on the jurisprudence that, at the time, upheld school immunization mandates. 

Further, as respondents here point out, if anything, the consequences here are less. Because of the pandemic, many students and faculty work from home, and those people are only “strongly recommended” to get the vaccine. It is only if people go into the shared environment of the campus that they need to be vaccinated.

Focusing on requiring flu vaccines during a COVID-19 pandemic. This is where the lawsuit draws most heavily on anti-vaccine claims, many of which are highly problematic, and also incorrectly characterizes the reason for the order as only focused on reducing space in hospitals. In reality, the order devotes quite a bit of time to the harms of influenza, and the need to protect people from them. The order also emphasizes the need to preserve hospital capacity, but that is not the only reason, and it also emphasizes the need to protect campus members from influenza.

As the respondents point out, extensive evidence supports the fact that influenza vaccines reduce harms, and expert agencies in the U.S. universally recommend it. In a battle of experts, the respondent has a list with substantial humph and would likely win; among other things, not all plaintiffs’ experts have relevant expertise (for example, Dr. Peter Doshi is not a physician, virologist, or epidemiologist ).

But it’s not likely to get to a battle of experts. Under Jacobson, courts traditionally defer to those in charge of public health in assessing the evidence, and although the university cannot just make up claims, if there is evidence on its side, the fact that individual experts – even if all were in the field – disagree, will not be enough to overturn the public health measure.

Plaintiffs try to argue that mandating the influenza vaccine is inappropriate because it is not the disease that is causing the crisis. To do so, they suggest that the only purpose of the mandate is to reduce pressure on the healthcare system; but the President’s order clearly also mentions the harms of influenza.

The COVID-19 pandemic makes reducing the burdens of influenza more pressing, but the university may be on the solid ground requiring influenza vaccines simply to prevent influenza. At any rate, it is reasonable to be concerned about the combined effect of two dangerous, contagious respiratory diseases at the same time, and to prevent what can be prevented. Maybe plaintiffs can convince a court to second guess the public health experts on this, but I would be surprised. These kinds of arguments have a long history of failing and very few successes.

Finally, the plaintiffs try to claim that flu vaccines increase the risks of Covid-19. As already mentioned, this is a non-starter. This claim, as respondents point out, largely draws on a study that predated Covid-19, and was about other coronaviruses – and did not conclude what anti-vaccine activists want to claim.

As the respondents pointed out, “Wolff [the author – DR] clarified that his study was being misconstrued.” In fact, recent studies found that people who received flu vaccines have lower rates of Covid-19 deaths, though it’s unclear if the connection is causal. 

Trying to claim a state right to privacy. This was raised in the cases against school immunization mandates in California and rejected. I addressed this in my article on the issue, The test for the right to privacy in California is a balancing test, and when the disclosure addresses providing limited information to an educational authority for a public health purpose, it is a weak claim. It has been rejected in the school immunization context and is not stronger here (id, pp. 247-250).

Religious courts claim

The plaintiffs complain that the implementation process of the religious exemption is chaotic and therefore unconstitutional. Specifically, they complain about some campuses having a delay in making available a form and other campuses setting up “religious tribunals to evaluate the sincerity of a religious accommodation applicant/supplicant’s religious beliefs.”

Note that imperfect implementation of a religious exemption may be grounds for improving the process, but does not make the exemption unconstitutional (and it’s not clear that anti-vaccine activists should want to have any imperfect religious exemption procedure unconstitutional because one potential result maybe not providing religious exemptions).

Evaluating the sincerity of religious exemption has a long history both in relation to exemptions from workplace rules and as a tool in applying the religious exemption to school immunization mandates of, especially, New York. Applicants may not like being asked questions about their religion, but it’s constitutional, and by itself, evaluating sincerity does not show hostility. The fact that setting up the process takes time is also not unconstitutional, though a campus that does not provide an exemption may face internal sanctions for not following the order, and potentially, students, staff, or faculty in that situation can complain to the President or the other university authorities.

Conclusion

The challenge to the University of California flu vaccine executive order faces an uphill battle, given the extensive jurisprudence upholding vaccine mandates. The challengers have made the best with a bad hand, but do not have very strong arguments against the mandate.

At this point, the lawsuit has been scheduled for a hearing on the preliminary injunction on November 4, 2020. While the university’s deadline is November 1, the University told the court it would not take steps against people who did not get vaccinated before the November 4th hearing date, and the court noted that in a decision:

UC shall not take adverse action against any employee or student who comes to campus who has not had a flu shot between now and when this court hears this matter. (See UC’s October 8, 2020 Opposition to Application to Reset Hearing Date in which UC committed not to do so.)”

Attorney Jaffee alleges that the University has not notified campuses, and filed a request, he said, for the UC to notify campuses. We will have to see whether anything will happen before the preliminary injunction hearing on November 4th.

Update 5 November 2020

On November 5, 2020 the Judge denied the plaintiffs’ motion for preliminary injunction. The decision is not available yet -the Judge ruled from the bench – and we will provide a summary when it is ready. But apparently, the decision was based on the Judge’s assessment that the plaintiffs’ suit is unlikely to succeed on the merits and the balance of harms favors the university.


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Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law. 

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.