In summary
Courts recently have tossed lawsuits challenging expired COVID-19 rules. A panel on the 9th Circuit Court of Appeals restored a case against the Los Angeles Unified School District, allowing employees to sue to prevent future vaccine mandates.
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Even though Los Angeles Unified dropped its COVID vaccine mandate for school staff almost a year ago, a lawsuit accusing the district of violating workers’ rights can still move forward, the U.S. 9th Circuit Court of Appeals ruled on Friday.
The 2-1 ruling by a pair of federal judges appointed by former President Donald Trump revives a case that a lower court had dismissed. It also counters recent rulings by courts — including the 9th Circuit — that tossed lawsuits challenging expired COVID-19 rules on the grounds that the policies were no longer in effect.
The judges in the majority wrote this case was different because they found L.A. Unified demonstrated a pattern of “withdrawing and reinstating its vaccination policies” over the course of the lawsuit.
“Accordingly, LAUSD has not carried its heavy burden to show that there is no reasonable possibility that it will again revert to imposing a similar policy,” the opinion states wrote.
They also indicated they were open to arguments over the effectiveness of the vaccine, which the U.S. Centers for Disease Control and Prevention describes as a safe way to build immunity against COVID-19.
“At this stage, we must accept Plaintiffs’ allegations that the vaccine does not prevent the spread of COVID-19 as true,” Judge Ryan Nelson wrote. The opinion characterizes that aspect of the ruling as preliminary, and something that would be argued at a lower court.
In a concurring opinion, Judge Daniel Collins invoked Supreme Court precedent that “compulsory treatment for the health benefit of the person treated — as opposed to compulsory treatment for the health benefit of others — implicates the fundamental right to refuse medical treatment.”
The plaintiffs alleged that the vaccines do not prevent someone from becoming infected with COVID-19 and characterized it as a treatment rather than a “traditional vaccine.”
They argued that by requiring employees to get the COVID shot, the school district was interfering with workers’ right to refuse medical treatment.
“No one with any credibility would tell you that the vaccine prevented COVID or stopped the spread,” said John Howard, a San Diego attorney who argued the case on behalf of a handful of Los Angeles Unified employees and an Idaho-based group called the Health Freedom Defense Fund that’s filed several other COVID vaccine lawsuits.
“But when the hysteria was going on, that’s exactly what pharmaceutical companies and others said,” Howard said. “It was false.”
The CDC says: “COVID-19 vaccines are effective at protecting people from getting seriously ill, being hospitalized, and dying.”
A 2022 study published in the medical journal Lancet found COVID vaccines reduced symptoms in infected people, but did not necessarily slow transmission, although previous research indicated vaccines were effective in slowing the spread of early COVID variants. The Johns Hopkins University Coronavirus Resource Center states that COVID vaccines likely “reduce the risk of virus transmission but probably not completely in everyone.”
The school district can appeal the ruling to a larger panel of judges on the 9th Circuit, which covers nine states and has been considered the most liberal of the nation’s appellate circuits. If the new ruling stands, the lawsuit would return to the U.S. District Court for Central Central California in Los Angeles court for further arguments.
“We are reviewing the 9th Circuit ruling and assessing the district’s options,” a spokesperson for the district said late Friday.
Lindsay Wiley, a law professor at UCLA and director of the school’s Health Law and Policy Program, said the judges’ finding against a government intervention is “extremely rare.”
“Judges applying this test are supposed to be highly deferential to the government’s rationale and scientific findings,” Wiley said. “It’s also notable that the judges in the majority went out of their way to reach the merits of the plaintiffs’ claim.”
Perhaps most importantly, she said, the judges in the majority said the century-old law that upholds vaccine requirements “does not apply unless the vaccine is effective in protecting others, not just the vaccinated person. This analysis is surprising and, I think, misguided.”
The ruling could have a “chilling effect” on government attempts to require vaccines in the future, Wiley said. “Governments should be careful to build the evidence base for their vaccination requirements, which are increasingly challenged by well-financed anti-vaccination groups in court.”
Courts toss lawsuits over expired COVID rules
Courts recently have dismissed similar complaints because California’s COVID public health emergency expired a year ago, ending state measures such as mask mandates and lockdowns.
In 2022, a 9th Circuit panel of 11 judges ruled that a lawsuit against Gov. Gavin Newsom over COVID-related school closures couldn’t move forward since schools had reopened and “there was no longer a live controversy.” Another ruling, last month in a California state appeals court, drew a similar conclusion in a lawsuit against Newsom over COVID safety guidelines.
In a dissenting opinion to the L.A. case, 9th Circuit Judge Michael Hawkins extensively cited the 2022 ruling on California school closures. He was appointed to the court by former President Clinton
“This case is over,” he wrote. “We cannot grant the sole relief sought by the Plaintiffs, an injunction against enforcement of the school district’s now rescinded COVID-19 vaccination policy.”
L.A. Unified’s COVID vaccine mandate
The lawsuit against L.A. Unified stems from the district’s initial policy from March 2021 requiring all employees to show proof of having the COVID vaccine or risk losing their jobs. A group of employees sued, and the district tweaked the policy to allow employees to show a negative COVID test if they didn’t want to get the vaccine.
A judge dismissed that suit, but in August 2021 the district re-instated the vaccine mandate as schools re-opened for in-person instruction. The employees filed another suit, this time with the Health Freedom Defense Fund.
L.A. Unified, the nation’s second largest school district with more than 600,000 students, closed for in-person instruction for more than a year during the pandemic, like most school districts in California. Los Angeles was hit hard by the disease. As of last week, nearly 36,000 people in Los Angeles County have died of COVID, one of the highest per-capita mortality rates in California and far above the national average, according to public health data.
In August 2021, the United Teachers of Los Angeles union voted to support the district’s vaccine mandate. Still, some district employees lost their jobs due to the district’s mandate, Howard said.
“People lost their homes, their careers. Some people had to leave the state. They had literally gone broke because of what L.A. Unified did to them,” he said. “It was appalling.”
