My Advice to UC Students (and their Parents) and UC Employees About the Mandate

My Advice to UC Students (and their Parents) and UC Employees About the Mandate

I am repeatedly asked by parents and UC students what they should do about the UC mandate and what about the legal challenges. Ditto by/from UC employees.

I am actually aware of only one filed legal challenge and that is the federal lawsuit recently filed in Riverside County federal court by the Frontier doctor group. That lawsuit does not cover all UC students, but only those who have had COVID, under the theory that if you’ve had the disease (and presumably you still have the antibodies) you don’t need the vaccine.

I keep hearing about a general lawsuit challenging the general mandate on behalf of UC students but I haven’t seen the papers, nor can I confirm that it has been filed.

Here is my advice:

I think you should assume that no legal challenge, filed or to be filed against the UC will stop the mandate from going into effect in August, and no lawsuit will stop the mandate for any part of the upcoming school year. I have some freedom to say this because I am not involved in any such case and I don’t want to be because I don’t think there’s a snowball’s chance in hell that a district or superior court is going to stop the UC mandate for a vaccine intended to stop the spread of the pandemic virus.

Like it or not (and I know you all hate it), Jacobson is the law of the land, and the law allows state and local governments to impose what they think (and the courts will agree) are reasonable rules including vaccine mandates (as opposed to actually forced vaccination which is a completely different issue).

All trial courts and appellate courts are required to follow Jacobson until the U.S. Supreme Court says otherwise. And yes, the Jacobson constitutional test (reasonably relationship) is outdated and now we have the three levels of scrutiny. However, I think the district judge in the Indiana University case got it right when he held that IU’s policy is governed by the lowest level of scrutiny (rational relationship, which is barely a test/requirement). I know the plaintiffs in these cases are arguing for strict scrutiny, but I don’t think that will fly (and it’s not much of a prediction on my part since the Indiana judge rejected it).

I know that the plaintiffs are also trying to wrap themselves in the mantel of the Supreme Court’s Cuomo case (which struck down religious restrictions during the pandemic). The judge in the IU case rejected it. I predict that the court of appeals will reject it also (and the denial of the preliminary injunction is up on appellate review). The plaintiffs will then seek emergency review with the Supreme Court. My crystal ball is a little foggy about whether they’ll get a review by the Supremes, but I’m vaguely seeing that the application will be turned down, which would not be a substantive rejection.

I’m going with that because I don’t think there will be four judges who want to deal with this kind of case in the middle of what I think all nine justices think is a very dangerous public health crisis (and I know most of you don’t agree with that assessment). Therefore, the best move for the Supremes is to punt and let the case come up through normal channels and time frames (like a couple of years) in large part so the state public health officials and governments can deal with the crises.

I think that’s a simple and easy call because let’s face it, they’re not lining people up and injecting them yet. If and when they start doing that, I think the Supremes will weigh in quickly, and that’s a case I would be extremely interested in, in part because I think the Supremes would be happy to overturn the actual precedent that allowed the government to do that (and that would be Buck v Bell, and O.W. Homles infamous jingle that “three generations of idiots are enough” which he said to justify forced sterilization). Like I said, for that case, count me in, and I can assure you all that is a case where the courts (and even the lower courts) will apply strict scrutiny.

But in these current and future UC cases, I am not seeing a fundamental right for any student or worker to study or work at the UC, which means a rational relationship, which means the plaintiffs get tossed out of court.

This is my legal opinion as to why I think you should assume that none of the lawsuits against the UC will succeed. Therefore, all UC students and employees are going to have to get vaccinated, get an accommodation/exemption (and you can forget about a medical exemption because ME’s like the ones given under SB 277 will not be accepted, the short of it being, no contraindication (or precaution) no exemption, period), or find someplace else to study or work.

I think your choices are that clear and that simple.

With all the crap and nonsense flying around about these lawsuits, someone has to tell people who are facing these tough choices what’s what, and since no one else seems to be stepping up to the plate, I guess I’m that guy.

Rick Jaffe, Esq.

15 thoughts on “My Advice to UC Students (and their Parents) and UC Employees About the Mandate

  1. Jacobsen was a weak case in all honesty. There was an alternative to vaccination (a fine), Jacobsen was not a Citizen, he was an immigrant, (Probabky more significant then than now), and the Supreme Court weakened Jacobson in 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo (11/25/2020):
    “In fact, Jacobson explained that the challenged law survived only because it did not “contravene the Constitution of the United States” or “infringe any right granted or secured by that in-strument.” Id., at 25.”
    Current mandates of an unapproved vaccine could violate several constitutional protections from privacy and due process, to speech and religion.
    Imo

    1. the 5 dollar fine argument is bogus. In Zucht v King in the early 20’s, the Supreme Court said Jacobson applied to mandatory school vaccination and there was no fine, just the mandate, and that’s the way it’s been interpreted ever since. In fact, the Zucht opinion actually stated that the Jacobson court had already upheld full mandatory vaccination programs and it was settled law and they didn’t understand people didn’t understand that.

      1. I think Zucht is also weak. It was dismissed on jurisdictional grounds, no?
        I’m one of the kooks that still thinks the federal constitution is much weaker than the State constitutions (see Cooper v. California, 386 U.S. 58 (1967) for example), and cases brought under the federal standards are more easily disposed of.
        I don’t think Jacobson stands for the proposition that any state can mandate any injection at any time. Call me crazy.

  2. There are some colleges (not UC) that are backing away from mandates due to pressure from parents and kids. Perhaps people should explore that route, and vote with their feet (whether delay or choose a different school) if UC doesn’t budge. Better to hold off on schooling than have a sick or dead kid.

  3. mmmmK…??? (WTF!) Okay being an idiot is not a legal justification for forced sterilization. Tell me you’re kidding. This is a joke. Stop it. No it’s not. Where the hell am I living? I can’t take it anymore. The idiots aren’t even the problem. Some of them are cute, and sweet and likable. It’s those who think themselves smarter the rest, who want to force their ways on everyone else who aren’t hurting anybody. People who try to control other people’s business. Pass a law to sterilize those folks and we’ll save the world.

    1. Not kidding, this is just one of a number of cases the supreme court has on the books which don’t look too good in modern times. The Supremes allowed the government to round up over 100k Japanese during WWI and interned them for years. Half of them were US citzens. There was no evidence that even one of them was a spy. But that was perfectly constitutional according to them. Don’t think it couldn’t happen again and to you all if say the death rate gets crazy big.

  4. Vote with your money, and only support businesses/entities that support free choice.
    Also, there are legitimate medical exemptions, such as if someone has had a past anaphylactic vaccine reaction.
    You didn’t mention religious exemptions…what about those?

  5. Thanks for the insights on the likelihood of prevailing in a court case that challenges the mandates. It’s one thing to believe that the mandates are not appropriate, but much more difficult to prove a violation of law in court.

    I have also seen a number of sites discussing the HHS statute (21 U.S.C. § 360bbb-3(e)) involving informed consent for medical providers and patients with respect to EUA products – and somehow coming to the conclusion that this statute, which does not apply to employers or schools that are not administering an EUA product, prohibits rules such as the UC mandate. The district judge in the IU case was not persuaded by this argument and I’m not aware of any other court rulings in which this line of thinking was confirmed, but people continue to mention this rule. What are your thoughts on this issue?

  6. the Feds are backing away from the no mandatory EUA, at least in terms of requiring the vaccine or repeated testing. The Methodist federla case involving Judge Lynn Hughers also implicated that issue, I would think, but I”m not sure.
    I never thought much of the federal statutory argument against mandating EUA vaccines since the mandate decision is a matter of state law police power and there is no supremacy issue in state police power cases, just constitutional privacy issues and that’s settled law via the Supremes in Jacobson and Zucht

  7. Most universities employing vax requirements offer some sort of “accommodation,” typically masking/frequent testing or remote classes. (I don’t consider religious/medical exemptions viable accommodations since they are rarely granted and don’t apply to objection over safety concerns.) However, UC (and Calstate) are taking an authoritarian line that effectively amounts to economic coercion with no reasonable accommodation.
    My son is a senior at a UC and has a narrow set of specific classes remaining to graduate; none of the classes he registered for this fall offer a remote option, and the few classes that do are already full and would not count toward his degree anyway. UC charges a flat tuition, not by the class, so unless you get at least 3 classes it’s not cost-effective to enroll in a given quarter. It’s ridiculous to suggest, as that judge in the IU case did, that going to another school is a viable “alternative” to vaccination; there are no other schools my son could go to in the area: he has Asperger’s and has to live with me (he tried a dorm and it was a fiasco), and I cannot quit my job and relocate so he can go to a school somewhere else. UC is punting this issue to teachers; the Registrar advised my son to “reach out” to his teachers. But what if they say no (as I suspect they will)? Then he can take off the quarter, the Registrar says. But if this policy continues into winter, spring, indefinitely? No answer. I’ve already shelled out more than $35,000 for my son’s education, and even if he could transfer to another quality school with an online program that wouldn’t require moving (doubtful), many of his completed classes are UC-specific and would not be transferrable, setting me back financially and him back in terms of completing his degree.
    What’s especially infuriating is that UC has been conducting remote classes for more than a year; the infrastructure is in place, and there’s little burden to the instructor posting lectures and tests online. What if a student were to get hurt and couldn’t get to class, or get a breakthrough case and have to quarantine for two weeks? Surely the instructor would have to accommodate the student. But I’m not seeing that here.
    In short, I don’t understand why the university can’t be legally compelled to at the very least offer continued remote learning to those who prefer not to get vaccinated at this time. That seems like a reasonable accommodation–while not the complete “college experience,” it allays the school’s liability fears and avoids disrupting the lives of students who simply aren’t comfortable yet taking a medicine with potentially dangerous short-term adverse effects and unknown long-term ones.

  8. Just got off a meeting about the UC Covid vaccine and compliance. IF approved for an exemption you have to test every 4 days, including if you have a flexible work arrangement. If you are on campus 1 day a week or fully working remotely, you have to comply with testing every 4 days. if not done at the University, then you have to upload your proof. Not sure if insurance would pay for this if it’s more convenient to go elsewhere if you are a commuter.
    In addition, if you do comply with the mandate, you must take the annual flu shot and all Covid vaccine boosters. UC pretty much owns you at that point if you want an education or a career. I don’t know what to do anymore.

  9. for sure they are trying to make it as difficult and onerous as possible if you don’t get the shot. It’s a pandemic and public health trumps individual rights to go or work at a specific place. You’re complaining now, if it gets really bad, look to some cities to follow NYC in requiring the vaccine to go out to dinner and to the gym. It could get alot worse.

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