There is consensus state and local governments may require COVID-19 vaccines. But questions arise when vaccine requirements are not uniform or when they fail to consider religious or disability-based objections. In Dahl v Bd of Trs. of W Mich. Univ., Case No. 21-cv-00757, the University adopted a policy requiring all student-athletes (but, apparently, not all students) to receive COVID-19 vaccinations as a condition of participating in team sports. The policy also permitted consideration of religious objections on a case-by-case basis. Plaintiffs were student-athletes who alleged they requested but were denied religion-based waivers and, as a result, were banned from participation. The University asserted the waivers had been granted; a fact the Sixth Circuit concluded was not supported by the record. On these facts, plaintiffs requested and received a preliminary injunction permitting them to participate in team sports, which was granted on condition they wear masks and submit to regular testing while participating. The University responded with an emergency motion to stay the injunction pending appeal.
In a ruling issued on October 7, 2021, the Sixth Circuit noted that its review of any preliminary injunctions was extremely deferential, particularly the fact-finding. Memorably, the court analogized clearly erroneous fact-finding to a conclusion that ‘strikes us a wrong with the force of a five-week-old, unrefrigerated dead fish.’ Employing this deferential standard, the Sixth Circuit declined to set-aside the preliminary injunction because the University’s policy was not narrowly tailored to address the University’s compelling interest in preventing the spread of the COVID-19 virus. Specifically, the policy only applied to student-athletes who were just as likely to contract the virus from the non-athletes of whom the University did not require vaccines. Still, the court characterized its decision as a “close-call.”
It is important to note the Sixth Circuit did not hold or even suggest COVID-19 vaccination requirements were unconstitutional or illegal, per se. Rather, the court affirmed the general understanding that non-uniform COVID-19 vaccination requirements may not be imposed without regard to good-faith religious objections. Even then, local and state governments may require mitigation measures that do not infringe on religious liberty, such as the masks and testing required by the district court’s preliminary injunction.