L.A.'s public school leaders can't escape a lawsuit accusing them of violating the constitutional rights of their workers by forcing them to choose between receiving a Covid vaccine or losing their jobs, a divided federal appeals court ruled, in large part because the judges said the school district has yet to demonstrate the mandated shots actually prevented people from contracting or spreading Covid.
In the decision, the judges also took Los Angeles' public school district to task for a "pattern" of implementing and rescinding their vaccine mandate in a bid to prevent judges from potentially dealing a crippling blow to vaccine mandates in the L.A. school system, and potentially beyond.
On June 7, a three-judge panel of the U.S. Ninth Circuit Court of Appeals ruled 2-1 to reject the attempt by the Los Angeles Unified School District (LAUSD) to end the legal action brought against the district by a group of LAUSD employees and medical freedom advocates over the mandate.
The decision was authored by Ninth Circuit Judge Ryan D. Nelson. Judge Daniel P. Collins concurred. Nelson and Collins were both appointed by former President Donald Trump.
Circuit Judge Michael D. Hawkins dissented from the ruling. Hawkins is an appointee of former President Bill Clinton.
The court fight began in 2021 when a group known as California Educators for Medical Freedom filed suit along with named plaintiffs Jeffrey Fuentes, Sandra Garcia, Hovhannes Saponghian and Norma Brambila against LAUSD. In the lawsuit, they asserted LAUSD's vaccine mandate violates their "fundamental rights to refuse medical treatment" by forcing them to receive a Covid vaccine, despite their objections and requests for exemptions, or face termination.
After the lawsuit was filed, LAUSD issued a "clarifying memorandum" to allow employees who wished to remain unvaccinated to instead regularly test for Covid. A judge, relying on that change to the policy, dismissed the lawsuit, asserting the testing option meant there was no future threat the workers could face.
However, the district then quickly eliminated the testing option, bringing the case back to court, this time joined by the Health Freedom Defense Fund and new individual plaintiffs.
In the renewed lawsuit, the plaintiffs specifically assert the LAUSD vaccine mandate is unconstitutional because it requires workers to receive a "medical treatment," which at best only reduces the severity of a disease's symptoms, and not a true "vaccine," which prevents people from acquiring an infectious disease.
A Los Angeles federal judge again dismissed the lawsuit, asserting the school district can constitutionally impose the mandate. He pointed to the longstanding U.S. Supreme Court decision in Jacobson v Massachusetts. That decision, which authorized Massachusetts health officials in 1905 to force vaccine skeptics to receive smallpox inoculations, has been used by governments for generations to enforce vaccine mandates.
The plaintiffs appealed to the Ninth Circuit. During oral arguments, school officials came under intense questioning from the appellate judges. And 12 days after those arguments, LAUSD's board voted to rescind the mandate. Their attorneys then argued the case should be dismissed because their recission of the mandate made the legal dispute moot.
That view was shared by Hawkins in his dissent. Hawkins said he believed the district's rescinding of the Covid vaccine orders were done in "good faith," timed to the school calendar, rather than litigation, and so they should be afforded the same leeway given to other governments in California and across the U.S. who similarly rescinded constitutionally questionable Covid mandates and policies when challenged in court.
"... I would not be so quick to deem the timing of LAUSD's development and adoption of the Policy as litigation gamesmanship...," Hawkins wrote.
The majority, however, disagreed, saying: "LAUSD's pattern of withdrawing and then reinstating its vaccination policies is enough to keep this case alive."
They noted that despite rescinding the policy, LAUSD has refused to foreswear implementing the policy again. They particularly noted that during the vote to rescind, LAUSD board members said they were only "reluctantly" voting to rescind and were "not afraid of litigation."
The decision noted that LAUSD Board President Jackie Goldberg said "she did not regret imposing the mandate for 'one moment, not 30 seconds, not one tiny bit.'"
"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," Nelson wrote in the majority opinion. "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.
"... LAUSD's timing is suspect," Nelson added.
Having decided the lawsuit could continue despite LAUSD's vote to rescind, the majority further overturned the lower court's decision concerning the constitutionality of the vaccine mandate under Jacobson.
They agreed the Covid vaccine's effectiveness at preventing infection may place the Covid shots in a different category than "traditional vaccines" which prevent people from becoming infected.
They noted LAUSD has pointed to information from the Centers for Disease Control touting the Covid shots as "safe and effective."
"But 'safe and effective' for what?" Nelson wrote. "LAUSD implies that it is for preventing transmission of COVID-19 but does not adduce judicially noticeable facts that prove this."
The majority cautioned their ruling is not final on the question of the effectiveness of the Covid vaccines. But they said, for now, they said, plaintiffs have done enough to back up - and defendants have fallen short of refuting - their contentions that the Covid vaccines do "not effectively 'prevent the spread' of COVID-19."
"Thus, Jacobson does not apply," the majority said.
In a separate concurrence, Judge Collins added that the effectiveness, or lack thereof, of the Covid vaccines factor directly into the question of whether Covid vaccine mandates violate people's medical freedom rights.
Since the Covid vaccines appear to neither prevent infection nor spread of the virus, Collins said: "The Supreme Court's caselaw thus clarifies 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.
In a statement following the ruling, Health Freedom Defense Fund president Leslie Manookian said:
“The Ninth Circuit ruling ... demonstrates that the court saw through LAUSD’s monkey business, and in so doing, it made clear that American’s cherished rights to self determination, including the sacred right of bodily autonomy in matters of health, are not negotiable. This is a great triumph for the truth, decency, and what is right.”
The decision would send the case back to L.A. federal court for further proceedings.
LAUSD could choose to ask the appeals panel to reconsider, or ask the full Ninth Circuit to overrule the two judges.
A spokesperson for LAUSD, however, only said the district was "reviewing the Ninth Circuit ruling and assessing the District’s options."
LAUSD is represented in the action by attorneys Connie L. Michaels and Carrie A. Stringham, of the firm of Littler Mendelson PC, of Los Angeles and San Diego.
Plaintiffs have been represented by attorneys John W. Howard and Scott J. Street, JW Howard Attorneys, San Diego; and George R. Wentz Jr., of The Davillier Law Group, of New Orleans.