Federal Courts Treating Vaccinated and Unvaccinated Litigants Differently

In the 10th Circuit, vaccinated attorneys can argue in person. Unvaccinated attorneys must seek leave to appear via video.


During the early days of the pandemic, most federal courts shut down, and moved all proceedings online. In the past few months, many courts have opened up, and began to hold jury trials. Even if courthouse require mask mandates, individual judges had the option to waive those requirements for jury trials. (And I am reliably informed that some judges have given litigants and jurors that discretion). Now with the Delta surge, courts are imposing new restrictions.

Last week, the Tenth Circuit barred unvaccinated people from entering the courthouse in Denver. They also cannot go to the clerk's office. They must drop off files in a dropbox near the entrance. And, unvaccinated attorneys must seek leave of court to argue a case via video. Presumably, that leave can be denied. This policy does not seem to have any exceptions for disabilities. There are some people who cannot receive the vaccine. For example, those with severe allergic reactions to both the mRNA and J&J vaccines. If an attorney falls into that category, he or she would be unable to represent clients. And there is no guarantee leave would be granted.

Moreover, there is no religious exemption. I think the federal courts are subject to RFRA, which imposes a heightened standard for the free exercise of religion. Attorneys who seek to represent their clients, and have religious objections to the vaccine, will be out of luck.

This policy would also affect law clerks, who need to enter the building to do their jobs. Any law clerks who are unvaccinated will be in a very tough spot. I've heard, anecdotally, that some judges are asking about vaccine status during the clerkship screening process.

This policy likely applies to criminal defendants as well. I understand some courts are imposing vaccination as a condition of bail. I suppose the courts can force a person to be vaccinated to even attend a trial or other courtroom proceeding. Though I'm not sure how a person who needs to be arraigned can get fully vaccinated in time. Those arraignments may go back to Zoom. I need to give that question some more thought. But the absence of any disability or religious-based exemption is problematic.

The Eleventh Circuit has adopted a more permissive policy. Vaccinated people can enter the courthouse in Atlanta. Unvaccinated people must provide a negative COVID-test. And unvaccinated employees must provide a least one negative COVID test per week. The U.S. District Court for the Southern District of Texas requires COVID testing twice a week for unvaccinated employees.  In the Western District of Texas, all jury trials were suspended until October.

The Fourth Circuit is avoiding the issue by sticking with Zoom arguments.

I haven't had a chance to check all circuits. These courts were featured in an AP article.

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  1. So, what level of scrutiny would apply to a court’s decision to distinguish between vaccinated people, and people who’ve already had covid? I’d be hard put to justify it on anything stricter than batshit crazyrational basis, but the courts give themselves a lot of slack.

    1. That depends? Can people who had Covid prove they had Covid? Or is the court just meant to take their word for it? Because if it’s the latter, I don’t really see how the level of scrutiny matters.

      1. I would imagine most, but not all, judges would accept 6 sworn statements from a medical doctor and 4 notarized sets of blood tests showing anti-bodies.

      2. ” Can people who had Covid prove they had Covid? ”

        Sure, the standard antibody test will show it.

        1. How long will antibodies continue to show up in tests after infection?

          1. Nobody knows because they haven’t gone away yet.
            There’s reason to extrapolate that even natural infection will produce long-lasting antibodies. There was a paper not long ago, sorry no citation, that found antibody-producing cells in the bone marrow’s long term storage in people who’d recovered from COVID.

          2. You can still find SARS antibodies in people who had it a couple decades ago.

            1. Brett,
              A small study from Singapore suggest that the antibodies from the original SARS virus confer immunity to SARS-CoV-2.

              1. Which is one of the reasons why some people don’t get the dreaded covid. But we’re not allowed to talk about that. Or even mention it on Facebook, that free speech bastion where people communicate with each other.

                1. Actually, Gospace, you knew nothing about the Singapore result until you read my post. Also, that immunity seems to be from the original SARS virus more than 10 years ago, not from any variant of SARS-CoV-2.
                  If you don’t like Zuckerberg’s site, don’t use it. You’ll be better off.

                  1. Where did you get the idea that you’re the only source of information on the internet? Immunity to the current SARS from the “original” SARS has been discussed on Instapundit and other blogs for months, possibly dating back to the beginning of the covidiocy.

                    Along with the idea that OTHER coronavirus infections may confer some degree of immunity from the current one. Coronaviruses are not exactly uncommon.

                    1. People blog about it being a Jewish conspiracy… what merits does blogging about something bring?

          3. You can ask the very same question about people who have been vaccinated and who vaccinated does not appear in a serology test.

            1. To rewrite:
              You can ask the very same question about people who have been vaccinated and for whom antibodies do not appear in a serology test.
              That has been the case for my son.

        2. If you look at the data being used to promote booster shots, it’s based on antibodies falling off from original vaccination and the booster increasing antibodies. In other words, antibody testing is the basis for the booster recommendation.

          In July the CDC said that “Antibodies CAN protect you from getting those infections for some period of time afterward” but also said “Antibody testing should also NOT be used to decide if someone needs to be vaccinated.” (emphasis added).

          Yet here we are, pushing boosters because of antibody tests. No wonder people are confusing and choosing to believe whatever they want to.


          1. Yes the story is decrease in antibodies in 6 to 8 months, no matter how they cot there in the first place.

            1. Which is, of course, perfectly normal, and does NOT indicate that you’ve ceased to have immunity. You don’t maintain high antibody levels perpetually after an infection, you just retain the capacity to manufacture more if challenged.

              This “sterilizing immunity” they’ve made the test for vaccine effectiveness is nice to have, but it’s not the normal state of the immune system, it’s just a temporary thing for a short while after an infection or vaccination. By requiring sterilizing immunity as the standard for the vaccine “working” they’ve baked in the requirement for periodic booster shots.

          2. They just say antibody testing should not be used to decide if someone needs to be vaccinated, because they don’t want people being able to point out that they don’t need to be vaccinated.

            It’s just the government-pharmaceutical complex working as usual.

        3. Except that the damned CDC does not accept that as prove of immunity.

          1. They’re currently accepting it for international travelers. But only by air, the virus politely refuses to cross by land.

            Requirement for Proof of Negative COVID-19 Test or Recovery from COVID-19 for All Air Passengers Arriving in the United States

        4. Yes, but then you’re back to just requiring a test before entering the building. The whole point is to avoid that mess.

          1. So now the point of vaccine mandates is not to save your life but . . . reducing administrative burdens and rule complexity?

            Funny. Like that article the other day claiming face diapers will actually help children learn and grow.

    2. Courts are stupid. They violate the Establishment Clause by looking like churches. You stand, you sit. You sit, you stand. There is an altar occupied by a dumbass dipshit wearing a black priest robe. This total asshole thinks he is better than others, and has a guy with a gun to assure that. This asshole is applying supernatural doctrines to physical world problems. He is wrong most of the time.

      To pay tribute to this piece of treasonous filth, we are transporting dangerous serial killers and expert escape artists across long distances from distant prison to crowded downtown areas. This piece of filth is wrong most of the time and severely damages our country. Yet he has dealt himself absolute immunity, and there is no recourse for his devastating damages to people and to nation. Get rid of this Medieval garbage practice.

      1. David, David,
        “altar occupied by a dumbass dipshit wearing a black priest robe”
        What kind of stupid comment is that?
        1) a judges desk though on a dais does not look like an altar
        2) the robe is an academic robe, not a priest’s robe
        3) “dumbass dipshit” does not say anything except about the person who uses it.

                  1. And who the fuck does the scumbag on the altar think he is when he is a mere low paid servant? He is the one that needs to STFU and listen to his employers. Have him tasered if he interrupts.

                    1. Do you think the splendors of the Vatican came from Sunday collections? You blasphemed by eating meat on Friday. We have a way for you to escape the stake. If you hand over half your assets, we can arrange for a dispensation. Those were funded by plea deals.

                      Every function of life had a fee paid, church ritual. What do you think the Protestants were protesting? The fees.

                    2. We are in the Inquisition 2.0. The first Inquisition was a rent seeking money making scheme. It ended when French patriots beheaded 1000’s of high church official. Seems a reasonable remedy for the 2.0 version. Everyone is sick of this garbage occupation, 10 times more toxic than organized crime, providing zero of any value to the public.

                    3. Do you know what bugs me most about this disgusting display of Catholic propaganda in the tribunal? Volokh. He is an expert on cases disputing tiny crosses in city flags, but remains blind to the disgusting self evidently lawless display of Catholic propaganda in our legal system. Highest IQ in the field, but blind. Poster boy for the lawyer dumbass.

                    4. “blasphemed by eating meat on Friday. ”
                      Eating meat on Friday is not blasphemy. Look it up.

            1. Notice, David, that the apparel you cite is not for Catholic priests.

          1. What is your point except to be pointlessly insulting to others?

            1. The look, the conduct, the format of the US court violates the Establishment Clause, and must be closed.

              1. David,
                Come on.
                You’re just trying to sound outrageous. Judges have always worn special garments.
                They have nothing to do with the Establishment clause.
                You’re just afraid the judge will hit you on the head with the gavel.

            2. You’re posing that question to someone who is so desperate for attention that most of his posts are responses to himself.

              1. I know David N.
                I am wasting my time.

    3. Rational basis, which the policy clearly satisfies.

      1. Only because rational basis doesn’t require policies to be rational, merely that the judge be able to imagine some basis for the policy that you wouldn’t have to be clinically insane to have adopted. That basis doesn’t even have to be the actual basis of the law, sensible, or factually correct. Just not chewing the furniture mad.

        1. With all your protestations that the judiciary has become too powerful, you shouldn’t be too unhappy with this standard of review.

  2. Just get the vaccine.

  3. Interesting; what happens to an unvaccinated person who receives a subpoena? Stand at the courthouse door and scream “I’m here!”?

    1. Okay, that’s funny. (And, a really good point, as well.)

  4. Yes, I’ll get in your car if you’re sober. But not if you’re drunk. It’s as simple as that.

    1. Wait. Shouldn’t alcoholics, like those who refuse the vaccine, be treated as a protected class?

      It’s DISCRIMINATION to not allow drunk people to operate vehicles on THE PUBLICLY FINANCED ROADS or to not allow the unvaccinated to enter PUBLICLY FINANCED COURTHOUSES.


    2. That’s a great analogy – except for pretty much every element.
      – Getting in someone else’s car is voluntary. Going to court is (often) not.
      – Driving drunk makes you a danger to others. Being unvaccinated makes you almost entirely a danger to yourself.
      – There are objective standards for how to measure the risk of driving drunk. There are no objective standards (yet) for the riskiness of being unvaccinated.
      – There is no reasonable justification to drive drunk. There are several medical and/or religious reasons why some people cannot get vaccinated.

      How about we use an approach that actually respects individual rights and freedoms?
      1. If you want to get vaccinated, do that.
      2. Once I’m vaccinated, you’re basically no risk to me. If you want to be unvaccinated, do that instead. I have no obligation to prevent you from committing suicide in whatever your chosen means.
      3. If you’re in the tiny subset who medically can’t be vaccinated, I’m sorry for you but society has never stopped for the small number of people who have to live in a literal bubble. We’ll continue to fund research to try to help you.

      1. Even with delta, there’s still evidence that vaccination reduces the risk to others.
        For one thing if you don’t get a case in the first place you can’t pass one along.
        Delta has figured out how to live in the noses of vaccinated people and spread itself from there sometimes, but the study from Singapore said that viral loads in vaccinated people drop quickly, so even when they’re contagious it’s for a shorter time exposing fewer people.

        1. Fred,
          the vaccination reduces the chance of infection by a factor of 5 to 10. In that way the vaccine reduces the spread of infection even if the viral loads are not very different for vaccinated and unvaccinated persons.

          1. I expect that, if you’ve got a high level of circulating antibodies, it’s quite possible a lot of your “viral load” comes pre-neutralized by being already bound by antibodies. And so isn’t as effective as the same load in somebody who isn’t mounting a robust immune response.

            1. That is a reasonable hypothesis

      2. I suppose a better analogy would be requiring that the driver display an Antabuse prescription before you enter their car, and refusing to be satisfied with a mere zero reading on a breathalizer test.

    3. The comparison with drunk driving misses the scale of the issue.
      The NHTSA says that in 2019 10,142 Americans were killed by drunk drivers.
      We’ve lost at least 624,000 lives to COVID. I can’t imagine any way to figure out how many of those deaths were caused by spread from non-vaccinated people, but a priori would expect it to be an overwhelming majority.

      1. You’re ignoring the different denominators. To put it a different way, very few people die after putting their head in a hydraulic press every year but it’s still safer to get COVID. If everybody drove drunk I have no doubt there would be more deaths in one year then from COVID, not to mention years lost just from the habit.

      2. Given that the vast majority of those lives were lost before the possibility of a vaccine existed, your comparison is irrelevant. If you look only at the number of deaths since the rollout of the vaccine, you’re well below the level of drunk driving deaths. And that’s before addressing gormadoc’s denominator concern.

        1. If you look only at the number of deaths since the rollout of the vaccine, you’re well below the level of drunk driving deaths.

          Um, what? You think that less than 10,000 people have died from COVID in the last eight months?

  5. Ah, the religious exemption to allow a ‘religious’ person spread disease and death.

    Exactly which religion is that, not one that I am familiar with.

    1. Fortunately that is a relatively small percentage

    2. Some of us, prefer not to imbibe a concoction; created with fetal cells taken from aborted children. Is it possible, some Religions might be opposed to that? YMMV, I guess.

      1. None of the vaccines contain any fetal cells. Neither Pfizer nor Moderna are produced using fetal cells. And the fetal cells used in the manufacture of other vaccines (including many non-covid ones that people claiming to have religious objections don’t seem to object to) are not “taken from aborted children.” They are derived from cells that were taken from aborted children 50 years ago. But the current cells have nothing to do with those abortions, and the abortions were not undertaken for the purpose of creating those cells.

        By way of analogy, we can all agree that murder of an innocent adult is immoral. But if someone is shot and killed in a robbery, few if any would argue that getting an organ transplant from this murder victim is itself morally problematic, even though the recipient is indirectly benefitting from the murder.

        And if we took some cells from the robbery victim’s body and used them to create cell lines which continued to be used for decades for medical research, even fewer would have an objection to indirectly benefitting from this attenuated connection to the murder.

        1. I would further note that the Pope says that there’s no issue here. Obviously that religious opinion is not binding on non-Catholics, but one would think it might give some people pause before raising religious objections on this basis.

  6. If Josh can point to actual examples of leave (to appear via video) being denied for attorneys with documented medical reasons for non-vaccination; it would be appalling and abusive. I hope that no such examples exist. It’s hard to imagine a judge telling an attorney, “Yes, you have demonstrated a valid medical reason for not getting this type of vaccination. But I now make the informed and conscious decision to forbid you from practicing in my courtroom via video.” Of course, there are good and bad judges, so it’s obviously *possible* that an attorney would be told this. Hopefully, it’s merely hypothetical.

    I never got the idea of giving a religious exemption to the vaccine. The whole point of the vaccine is to make yourself safer AND to make everyone else around you safer. That sure seems to satisfy strict scrutiny…and I don’t see how it could be more narrowly tailored than “everyone gets the vaccine unless there’s a medical reason why it’s not advised.”

    If you want to drive without a seat belt, and you make that claim based on religious reasons, I have no problem with that (I have my own personal opinions about your stupidity, but that’s irrelevant). And I have no problem with it, since you driving without a seat belt does not affect me in any way. (Aside from a tiny tiny increase in medical costs for care due to driving accidents where there are injuries that would have been avoided with a seat belt..but it’s a small enough cost for me that I can see it outweighed by protecting your (dopey) religious beliefs. BUT…if you want to drive drunk for religious reasons, then care a lot about this. You’ve convinced me that you are religious, you’ve convinced me that driving drunk is an integral part of your religion, but I no longer give a crap about your religious beliefs. Because now your dopey religious views directly impact my safety, and my son’s safety, and my spouse’s safety, etc etc. Even though the increase to the real-world risk to us is infinitesimal.

    Just as I intuitively see a massive difference between wearing a seat belt (a purely private activity) and driving after drinking (public risk), so I see a massive difference between wearing religious garb, getting workplace breaks for prayers, avoiding paying for insurance for employees that will give them control over their reproductive functions, and so on…and doing something that creates a real, extra, danger for other people. (Even when that increase is only slight.)

    1. Granting getting vaccinated makes people safer, the purpose of our government is not to make us safer, it’s to protect our rights. Government coerced intrusion on bodily integrity is as obvious a rights violation as there is.

      And whatever danger an unvaccinated person poses to others is pretty much nullified by those others being vaccinated, so if you’re that worried about unvaccinated people, get yourself vaccinated and stop worrying.

      1. Just remember that your rights are limited as soon as their extent infringes on the rights of others.

        Every unimmunized fool who is occupying an ICU bed, is making that bed unavailable to people with other serious conditions that they could not have prevented.

        1. Thus the libertarian principle that costs should NOT be socialized. Because the moment costs are socialized, the government has an excuse to take away from you any choice that might increase those costs.

          Just make waivers available stating that people who’ve refused to be vaccinated can be booted out of the ICU if the bed is needed for somebody who did get vaccinated.

          1. That’s a dangerous road, Brett.

            What about the guy who smokes, is 100 lbs overweight, and never exercises, and then has a heart attack? Do you kick him out also? What about the guy who was in car wreck because he drove like a fool? Etc.

            Besides, what’s so libertarian about your solution? The unvaccinated idiot says he’s entitled to the bed because he can pay for it. Isn’t that your market forces at work?

            First-come first-served may not be the best way to allocate ICU beds, but if you want to do it better you’re going to need more than a simple rule like yours.

            1. The dangerous road is the one we’re already on, Bernard, where the government starts paying your medical bills, and then demands the right to order you to live its idea of a healthy life. It’s dangerous to our freedom.

              I want people to have choices, and the inevitable predicate of having choices, is having to bear the cost of the choices you make. If somebody else bears the costs, they’ll take your choice away in self defense.

              1. Markets do not ration any more fairly or less arbitrarily than governments.

                In fact, I’d argue they are worse.

                1. Yeah, if your idea of “fair” distribution has nothing to do with whether people pay for what they get, or get what they pay for, you’re not going to see markets as “fair”, because you’ve built that into your idea of fairness, which is designed to require coercion.

                2. Uh….NFW = In fact, I’d argue they are worse

                  You’re joking, right?

                3. Well, they definitely ration more efficiently than governments. And I’d say that more efficient is less arbitrary. And fairer to the populace as a whole.

          2. Brett,
            I am fine with your suggestion, but you KNOW that is not the way medicine works.

        2. How about, kicking out the Illegal Aliens and uninsured? That would open up, quite a few beds and make the Hospitals vastly more profitable.

          1. How about not treating stupid people?

      2. “the purpose of our government is not to make us safer, it’s to protect our rights.”

        From the Preamble of the federal constitution, which explicitly states the purpose of our government

        We the People of the United States, in Order to: (1) form a more perfect Union, (2) establish Justice, (3) insure domestic Tranquility, (4) provide for the common defense, (5) promote the general Welfare, and (6) secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

        I’d say (3), (4) and (5) (making us safer) all support efforts to vaccinate people against a pandemic.

        1. 4 is about defense from foreign invasion – humans making war, not disease. 4 does not support your claim. 3 only works if you argue that it’s necessary to stop riots. There is no evidence that people are willing to riot over a lack of lockdowns. On the contrary, the domestic Tranquility ls being jeopardized by heavy-handed government mandates. 5 plausibly supports a generalized “make us safer” mandate but that becomes so broad that it authorizes any government action and evicerates the concept of limited government of enumerate powers. Your argument has the effect of giving the federal government a general police power – something that we’ve said for over two centuries that the Constitution does not allow.

    2. I think it depends on the virus in question, the safety and effectiveness of the vaxx in question etc.

      I am very curious to see what they will say. The cases are coming. And you can be sure that they will be looked to for precedent during the next pandemic, or even the next time a government requires a vaxx for any old virus.

    3. I’m not aware of any religious exemptions to seat-belt laws

  7. The tide is turning and those who are vaccinated are sick of those who are not and are done with their excuses. Not getting the vaccine will have consequences and they need to decided if they want to accept those consequences.
    Being a dumbass is not a protected class.

    1. Blacks have the lowest vaccination rate, Hispanic the second lowest.


      Why do judges hate black people?

      1. Importantly, this is disparate impact discrimination.

        A system where people of one race are more often denied the ability to be in person in court when compared to people of a different race.

        Couple this with the hypothesis that a lawyer and/or client who is arguing their case in person, compared to over the video, and…

      2. Bob,
        That comment is no longer true. Here are the results of a large study. Do read the whole thing.
        medRxiv preprint doi:
        this version posted July 23, 2021.

        1. “large study”

          Internet study, self selection bias as usual.

          My link was based on CDC info.

          1. Typical of your Bob. Just disregard any information that contradicts your political prejudices.

            1. Nico, if you do not understand the statistical problems with a self-selected sample, then you should refrain from attacking people that point out the issue.
              If you can show that self-selected online surveys are a valid method of modeling the general population, please do so! You will revolutionize the entire fields of statistical survey methods instantly, almost certainly becoming quite rich in the process.

              In general, the ‘study’ is garbage. The CDC’s vaccination rates, on the other hand, are not. Barring the publication of your world-shattering results sometime soon, I’m going to ignore the piece of garbage paper you don’t understand and stick to actual data.

              1. Easy for you to say. The number sampled was very large. I know full well about self-sampling errors. We see these all the time in political polls. But the usual problem is mitigated to a degree by looking at the temporal dynamics.

                When I see the objections occur only when they are politically convenient for the person who objects, I am highly suspicious. I had read the entire paper and the statistics were done with great care and error sources were estimated at every stage and in this case I will stand by my criticism of Bob, who is one of the more extreme partisans here.

                I’d be very interested in your technical analysis explaining why the study is garbage beyond the criticism that it is an online survey.

                The entire tone of your comment to me is simply patronizing and insulting. I will refrain from acting in the same way toward you. You luck with your skepticism and reliance only on vaccination rates which tell us nothing about why vaccine hesitancy is so great in the face of a variant 3x more contagious than the 1918 influenza.

                1. Well, the #1 problem with the study is that it is not representative of any population other than the population of people that chose to participate in the survey. If all you wanted to do was learn about people that participated in your survey, great! But the most basic of basic rules of sampling is that you need a sample that represents the population you are attempting to model.
                  To give you an example, 8% of the US population has a Masters and 2% has a PhD or professional degree (MD, JD, etc). Yet in the survey population, is was 12% and 5%. Similarly, only 6% (weighted down to 5% in the analysis) of respondents reported as black, vs 13% nationally. These are significant differences, especially because of the large response count.

                  I’d see this sort of error constantly when I was teaching Statistical Survey Methods to sociology undergrads. “I surveyed 10,000 people!” they’d yell, “What do you mean my results don’t apply?”
                  The answer was always “No, you got 10,000 responses, all of which came from people that decided to visit your University-hosted blog, which you advertised by sending out a notice on the department mailing list. This is not representative of the US as a whole.”

                  Next, the questions had very high levels of non-response and missing data. 10% is bad and will likely mean your results are biased; in excess of 20% for questions in a self-selected survey is terrible – it basically guarantees that your results are inaccurate.

                  Really, a large warning sign should have been this quote in the paper: “The study employs a novel sampling method with a soft ask and low response rate, the effect of which has not yet been fully studied”. They’re using untested and unproven methods, but applying them as if they were proven.

                  Related, the authors seemingly discarded large chucks of the data (in excess of 85% for most months) in order to produce their final analysis. While this is never a good thing, if your data is sufficiently messed up, it may be the only thing you can do. It is unclear in this case why the data for non 18-34 yos was unusable for their primary analysis, but useful for the subcategory analysis.

                  The survey itself had problems where different types of advanced degrees mentioned in the survey did not match those used in the paper. I assume this is due to typos or category renaming not being universally applied, rather than actually changes in the categories.

                  Also, the results conflict with other similar studies, especially in their conclusions about age and education effects – see Sallam, 2021, for the NIH metastudy, or Soares, 2021. When a “novel method” produces results that do not match the results from existing, proven methods, you need some serious justification – and this paper presented none.

                  Of the 22 citations, 10 are to news articles and press releases, which is never a good sign.

                  To be fair to the authors, they do not oversell the strength of their results (much).

                  Finally, this paper surveys future intents, while CDC data measures actual behaviors. In other words, the CDC data measures what actually is, while the paper (even if accurate) would be measuring what people are saying on Facebook during the first few months of this year.
                  Actual data is ALWAYS better than measures of statements of intent.

                  As for being patronizing, well, when I see someone repeating typical freshman mistakes and dismissing valid criticism with personal attacks, then yes, I will treat them as if they were a typical ignorant freshman.

              2. I am still waiting for your technical analysis that goes beyond pointing out an obvious weakness of the method and suggests a method of answering the question posed.
                And no, that method is not just counting vaccinations.

                1. You waited two and a half hours?! Oh my god, how could you bear it? Do you need a doctor?

                  Also, can you please explain why you think counting vaccinations is not a good way to count the number of vaccinations given?

      3. The Armchair makes another lame comment. Vaccinations rates have zero to do with disparate impact discrimination

        1. No, he’s right. The thing about “disparate impact discrimination” is that the whole point of disparate impact is to avoid having to prove any discrimination: The disparate impact itself is regarded as presumptive proof of discrimination.

          So any policy at all that would have disparate impact is considered to be discriminatory, even if no actual discrimination is taking place.

          1. No, Brett, you and he are wrong.
            That doctrine only applies in certain circumstances to protected classes.

          2. That’s … not true.

            A few things, Brett. First, as has to be repeated, always remember that Armchair Lawyer is not a lawyer and has a habit of making things up.

            Second, the whole Bob/AL/conservative reiteration of “No, the LIBS are the REAL RACISTS!” is not just tired, it borderline nonsensical given that it just a random troll at this point in all comments.

            Third, and finally, that’s not how disparate impact works. Let’s go back to Griggs v. Duke Power- that’s really a good case to think about the what and the why of DI (given that’s the start of the framework). In that case, Duke Power (which had a long history of overt discrimination) changed their work policies after the passage of the CRA of 1964. What they did was to require certain prerequisites (employment tests and high school diploma) for entry level jobs.

            This was as egregious overreach; both the timing (they literally did it right after the passage of the CRA) and the impact made it clear what Duke was doing.

            But all this just provides a framework- given Wards Cove and Ricci, disparate impact suits under Title VII (most common mechanism) are darn near impossible.

            More importantly, this ONLY APPLIES TO STATUTORY LAW (usually Title VII). Disparate impact is not some “catch all” that you apply to any arguments or claims, even though (for whatever reason) certain individuals like to talk about it constantly, even when there is absolutely no evidence.

            TLDR; if someone is saying “disparate impact,” it’s always , “Hey, look, there’s a squirrel.” In addition, they (1) don’t actually understand it, and (2) don’t understand how limited it is now, and (3) don’t understand how it works.

            1. That Democrats are racist and gain power by enflaming racial hatred is undeniable — period.

              Tired of hearing it? Stop being a racist.

              1. It would be more amusing if you could make your post more amusing. Alas, I’ll just have to mute you

            2. TLDR; if someone is saying “disparate impact,” it’s always , “Hey, look, there’s a squirrel.” In addition, they (1) don’t actually understand it, and (2) don’t understand how limited it is now, and (3) don’t understand how it works.

              I think that’s too strong. Activists routinely make disparate impact arguments against various policies even if those policies don’t themselves violate positive law. And there’s nothing wrong with that as a policy argument even if it’s not a legal one.

              Obviously it most often involves employment discrimination, though all of the ADA, including its public accommodations provisions, is inherently a disparate impact law. SCOTUS ruled a term or two ago that the FHA is a disparate impact statute as well. And of course the Voting Rights Act, even though Brnovich narrowed that somewhat.

            3. Oh Loki,

              I hope you’re not actually a lawyer. Because you’re entirely wrong, and citing caselaw that is more than 50 years old, without any of the cases that have occurred in the interim. For a description of how disparate impact and Section 6 actually works, here’s an example.

              “A middle school has a “zero tolerance” tardiness policy. Students who are more than five minutes tardy to class are always referred to the principal’s office at a particular school, where they are required to remain for the rest of the class period regardless of their reason for being tardy. The school also imposes an automatic one-day suspension when a student is recorded as being tardy five times in the same semester. Additional tardiness results in longer suspensions and a meeting with a truancy officer. The evidence shows Asian-American students are disproportionately losing instruction time under the school’s “zero tolerance” tardiness policy, as a result of both office referrals and suspensions for repeated tardiness.

              An investigation further reveals that white and Hispanic students are more likely to live within walking distance of the school, while Asian-American students are more likely to live farther away and in an area cut off by an interstate highway that prevents them from walking to school. The majority of Asian- American students are thus required to take public transportation. These students take the first public bus traveling in the direction of their school every morning. Even though they arrive at the bus stop in time to take the first bus available in the morning, they often are not dropped off at school until after school has begun.

              As justification for the “zero tolerance” tardiness policy, the school articulates the goals of reducing disruption caused by tardiness, encouraging good attendance, and promoting a climate where school rules are respected, all of which the federal funding agency accepts as important educational goals. The agency would then assess the fit between the stated goals and the means employed by the school— including whether the policy is reasonably likely to reduce tardiness for these students under these circumstances.

              Assuming there was such a fit, the agency would then probe further to determine the availability of alternatives that would also achieve the important educational goals while reducing the adverse effect on Asian-American students (e.g., aligning class schedules and bus schedules, or excusing students whose tardiness is the result of bus delays). If the agency determines that a school’s articulated goal can be met through alternative policies that eliminate or have less of an adverse racial impact, the agency would find the school in violation of Title VI and require that the school implement those alternatives.”

              Note, there does not have to be ANY evidence of discriminary intent…past or present…in order for there to be a Title 6 violation. And to answer Don’s criticism, the “protected class” is African Americans or Asian Americans respectively. Not “People who aren’t vaccinated or people who live far away from the school”

              As for a reference….This example is text book from the Department of Justice’s Title VI Legal Manual.


              So, next time you make an absurd comment about “not really a lawyer” Loki…maybe you should actually look at and know the law.

    2. So you’re obviously one of the superior vaccinated people who look down on us who won’t a shot that doesn’t meet the traditional definition of vaccination that causes the body itself to manufacture a known pathogen- the spike protein- and let it into out blood system.

      Are you afraid of getting the dreaded covid from us? You’re SUPERIOR!” You’re VACCINATED! Why do you care about our status? You can’t get it. You’re VACCINATED! Or have you come to the realization you’ve made a horrible mistake and want everyone else to suffer too? I suspect the latter is your motivation.

      1. “Why do you care about our status? ”
        We care about it because vaccinated persons can still get infected albeit at a much lower rate and with statistically much less serious consequences. I don’t need a fool to have me spend a week at home in bed.
        Your so-called freedom therefore impinges on mine.
        So lose your stupidity and arrogance and get a shot.

        1. What you’re saying is- THE DAMN VACCINE DOESN’T WORK!”

          I agree. And if I ever have any covid like symptoms, I’ll stay home and isolate for a few days. Meanwhile, you have nothing to worry about except for- vaccinated people who get it don’t show any symptoms while they can spread it!

          Meantime I do quite a few things to avoid getting it- that do not include useless masking and social distancing. I’m doing part of the I-MASS protocol recommended at covid19criticalcare dot com, but not the ivermectin. Instead of commercial antiseptic mouthwash, I gargle each night with warm water an xylitol, which has antiviral properties. And, each morning use my Navage with warm water and xylitol. Their recommendation for early treatment with 6 mg melatonin each night- I do that as a sleep aid every night. They don’t have quercetin and NAC on their list, I also take those. Statistics show they’re effective preventatives. Unlike you, I don’t live in fear of a virus that isn’t bloody likely to kill or incapacitate me. You might want to ask- why is standard US medical treatment do nothing? The Front Line COVID-19 Critical Care Alliance has outlined treatments they claim are effective. Doing nothing vs trying something… hmmm, official CDC recommended policy is do nothing and wait to see if the patient dies or recovers.

          1. “What you’re saying is- THE DAMN VACCINE DOESN’T WORK!”

            I did not say that at all.
            Your response compounds the stupidity of your previous comment.
            The vaccine reduces your chance of infection on exposure by a factor of ten.
            It reduces your chance of dying if you do happen to get sick by a factor of 200.

            I have no idea what your regime of placebos is doing for you, but that is your choice in the end. It is also society’s choice to bar you from many facilities. So live with it.

            But for goodness sake, wise up and get facts into your head to displace politically motivated pipe dreams

            1. I don’t think he means the vaccine literally doesn’t work. Just that the rules out there treat it as though it didn’t work, so why should anybody be forced to take a vaccine that ‘doesn’t work’?

              1. Brett,
                He used all caps. He does mean it and he is displaying his stupidity.

                Frankly, one side of me is happy to see the number of stupid people in the world reduced.

      2. your seething rage is palpable. give in to the dark side

    3. In my world, the tide is turning and the unvaccinated are sick and tired of the vaccinated constantly bitching about their perceived superiority because they allowed themselves to be injected with an unproven vaccine just so they can sit at the “cool kids” table. Sit at your damn table and enjoy yourselves. Just leave me alone. I’m having fun at my table with my family and friends and do not need your interference in my life! You have faith in the vaccine plus you are wearing a mask. Great! You are safe from me and my friends. Just let us party on as we drink our beverages without having to pull down our paper face coverings each time we take a sip.

      1. “to be injected with an unproven vaccine just so they can sit at the “cool kids” table.”
        Are you truly that stupid?
        These vaccines have been given to a number approaching 1 billion people. They are as proven as anything that you take for a fever.
        I applaud your staying away from me with your clueless friends.
        Just stay far away.

      2. As long as “your” table is in another room that doesn’t share a ventilation system or exchange air with the room my table is in and we don’t share restrooms or waiting areas, fine. I do hope though that private businesses just ban the unvaccinated – that is beginning to happen in my area and I am much more likely to patronize a business that does so.

        Some of us rational people know the vaccine is not a 100% guarantee of not contracting COVID-19. However, we also know it significantly reduces the chance of infection and dramatically reduces the chance of death from COVID-19.

        We also know that a seat belt is not a 100% guarantee of safety so we wear a seat belt but also believe that drunk drivers should not be allowed on public roads. What drunks do on private land is between them and the land owner – for all I care they can intentionally drive head on into a thick concrete barrier at 120 MPH on private land – I believe that suicide and attempted suicide is a human right and should not be illegal — but if your suicide attempt endangers me, that should be illegal (such as jumping off a five story building while I’m standing below you).

        1. As a vaccinated person, this fascist does NOT speak for me or anyone else who opposes fascism and the irrational COVID fears that created so many batshit crazy people.

          Get a damn grip.

          1. “the irrational COVID fears”
            Open your eyes, DWB.

            1. They are wide open — man the hell up!

              1. Just stay at least 10 ft away.
                And lose the sexist comment

                1. Sexist my ass — borrow testicles from a friend if you need to and man up. Coward

                  1. I don’t have time to waste with your nonsense. Bye

                    1. Don’t forget your binky you little pussy

                    2. I see a grey box.
                      I guess the foul mouth guy had more vitriol to spew

                    3. JUST what a coward like you would do!!!!!!!

                      Cry to mama, boy!

  8. “I’m not a doctor, but I play one on the bench.”

    On Prof. Volokh’s earlier post about a judge requiring a defendant to receive a COVID vaccine as a condition of bail, I facetiously noted that perhaps COVID vaccines should be required to even access the courts.

    At least, I had thought I was being facetious.

    This isn’t based on any solid science, but on the left-wing bureaucratic hive mind, which seems to impartially infect all branches of government.

  9. And unvaccinated employees must provide a least one negative COVID test per week

    And since it’s a medical test they are requiring, they’re paying for it, aren’t they? Or are they trying to weasel out?

    1. Our university supplies the test and the requirement is twice per week.

      1. For the vaccinated it is once a week.

    2. Where I live the test is free to the individual.

      I suppose the state or the city is paying for it. Better than a lot of other uses of public money.

      1. Indeed, our university pays for the testing.
        Even vaccinated people need to get one test per week if they are on campus

        1. “Even vaccinated people need to get one test per week if they are on campus”

          Vaccine deniers!

          Mixed signals does nothing to promote vaccine use.

          1. Bob,
            Another irrelevant comment. There are no mixed signals
            Our policy is not a ploy to encourage vaccination.
            It is a way designed to minimize the risks to people who come to campus. That is our message and our motivation.

  10. Can we just proceed with the “clean” or “unclean” tattoos and get this bullshit over with? I’m about tired of the arguing over it.

    1. Good idea. Get that unclean tattoo tomorrow and be banned from entering any place that your superiors frequent.

      1. Please, you’re starting to sound like the Rev. Don’t start on that “superiors” crap.

        Seriously, don’t.

        1. Ah, you’re right about that Brett. But these clowns started withthe word “superior.”

          1. In all fairness, you’re superiority complex, is showing rather well. Somewhat typical, of those in Academia. I somehow doubt, you hang out with folks who work actually producing/distributing, the goods you feel entitled to.

            1. Jeff,
              What you call “my superiority” is just my impatience with stupid people. If you don’t like it, too bad.
              Also you have no idea with whom I hang out. Are you talking about tens of my colleagues who have spun off tens of high tech companies to produce the products that can change our society?

              1. “my impatience with stupid people”

                So sayeth everyone with a superiority complex, its always that the other people are stupid.

                1. Bob,
                  Stupid people are the bane of the nation.
                  I am sorry that you are one of them.

                  1. You are being unkind, and that is not the same Don Nico I have been reading for months. The data that are out there are subject to multiple interpretations, as we see in this VC post. I know I look at a lot of data in my spare time, and do a lot of head-scratching.

                    We won’t ‘know’ with certainty the answers to the kinds of questions being posed here for some time (years, I suspect), Don Nico. In the meantime, each of us must decide for ourselves how to handle covid-19 (isolation, vaccination, etc). I accept that some people choose not to vaccinate; that does not make them stupid, malevolent, or ill-informed. This tendency of just assuming we can blithely sentence them to perpetual home incarceration and strip them of their individual liberties if they choose not to vaccinate is reminiscent of what the CCP does to its people. That is not our way.

                    I will also say that the 1905 Jacobson decision ought to be re-read by everyone. Professor Blackman has been helpful here. I don’t think Jacobson says quite what people would like to think it says (namely, it is perfectly Ok for a state to violate body autonomy and force vaccination whenever they like). The facts were (and are) very different then and now.

                    1. C_XY,
                      You are correct. That was unkind of me. Thank you for calling me out on it

                      And if Bob reads this comment, he will read. “Bob, I am sorry for the kind words. One should not attribute the characteristics of a statement to characteristics of the speaker.

                      Going further, I have a good friend in Switzerland who will not get a vaccine after long thinking and reading about it. I respect her opinion and I support her even though we have a difference of opinion. I also oppose the growing tendency to reduce the population to two classes, sheep and lepers. Still institutions and societies as a whole have the right to protect themselves against a disease that is presently out of control in the US. I am glad that I am not in a position to have to decide, but as a scientist who has now worked in this area for the past 20 months, I find the misinformation and callousness of the deniers and hesitate rater maddening. In fact at the same level that I find the opinion that Trump actual won last November

                    2. C_XY,
                      Regarding Jacobson, in the US the state is not force vaccinating people. What is it doing is putting restrictions on the behavior of unimmunized persons based on the preponderance of the evidence.
                      In my opinion, those policies deliberately ignore the fact the the COVID-recovered are immunization to the same degree (±10%) as those who have been vaccinated. Unfortunately the CDC recommends against using serology tests to demonstrate that fact for individuals. So what we have is a gross shortcoming in policy for more than 36 million Americans

                    3. “Regarding Jacobson, in the US the state is not force vaccinating people. What is it doing is putting restrictions on the behavior of unimmunized persons based on the preponderance of the evidence.”

                      I think at some point such restrictions cut into normal activities to a point where they have to be considered force.

                      Yes, the state is not seizing people, tying them down, and injecting them. But the level of restrictions they ARE imposing in some places are on a scale that you might normally see only after a criminal conviction. That seems to cry out “penalty” to me.

                      And if you penalize failure to do something, rather than simply refuse to provide privileges, you are forcing people to do it.

                    4. “Yes, the state is not seizing people, tying them down, and injecting them. But the level of restrictions they ARE imposing in some places are on a scale that you might normally see only after a criminal conviction”
                      Come on Brett. No one is being locked up or put in solitary confinement. But if the US Government restricts entry to its facilities to the immunized (note that I did not say vaccinated) and if you want your government job, then you had better get an exception or a vaccine of accept the other restrictions.
                      Hard to call that forced vaccination.

                    5. Brett, one more thing,
                      “And if you penalize failure to do something..”
                      But the government employees are not being penalized, they just have to meet the conditions for workplace safety that justified by a preponderance of the evidence.

                      I remind you, that I agree with you about the matter of immunity of those previously infected. There the government is demonstrably wrong.

          2. A coward like Don is superior to no one

            1. Coward?
              Wow, telepathy works. Bravo

  11. For the crowd that claim ‘allergy’ to the vaccines, it is simply untrue.
    I daily interview patients regarding their medication allergy in detail prior to anesthesia. Not once has anyone declared allergy to polyethylene glycol or polysorbate.
    So for me that is zero patients out of about 50,000.
    And the data is that the actual published rate is 0.0009%. So if I keep working another 30 years, my odds of seeing this reaction increase to nearly even for a full career.

  12. After 6 months of exhaustive testing covering all possible side effects, nothing to worry about!

    Changes in a woman’s period after the vax? Totally normal! It happens with all vaccines, doesn’t it? Nothing to see here, nothing to worry about as far as long term effects. After all, to quote from the article: “Back to fertility. Dr Edward Morris, the RCOG president, has reassured women that there is ‘no biologically plausible mechanism by which current vaccines would cause any impact on women’s fertility’. “” There is also no biological plausible mechanism by which current vaccines would cause any impact on a woman’s period. But it’s happening. But nothing to see here- many of the commenters are assuring me the dreaded covid experimental vaccine that causes the body to produce a known pathogen- the spike protein- is perfectly safe.


    1. Of course there are persistent side effect.
      Both my son and I have them. But they are better than the ICU.

      1. That presumes, facts not in evidence. 1- That you will get Covid. 2- That it will be severe enough to require medical care. 3- That it will be severe enough to require the ICU. However, your odds have increased since injection. I understand your position. You may, have doubts now but, it’s too late. It’s easy to demand others do what you did, to ‘share’ the regret. Use your intellect wisely. There is a reason PHD’s have a lower vax rate than those with lnferior degrees. https://www.medrxiv.org/content/10.1101/2021.07.20.21260795v1.full.pdf

        1. ” However, your odds have increased since injection.”
          How can you make such a baseless conjecture that contradicts a large volume of scientific evidence.
          I read that entire preprint Jeff. But your reasoning from the abstract that paper is way off base.
          But good luck to you. It’s your life on the line

      2. You keep attacking everyone personally.
        You let your son have the vax?
        And now he has persistent side effects!
        The vax was taken by him to guard against what – the cumulative remote possibility that he will, one, contract the virus, two, will not benefit from prehospitalization treatment, three will be hospitalized, four will be admitted to the ICU, five that he would not otherwise have contracted the virus in spite of having had the vax?
        And he guarded it by knowingly encountering a ? (question mark) – persistent side effects which may be permanent and long term effects which are unknown.
        The vax may have addled you. Perhaps you should take a seat at the potted plant table.

        1. Chaos,
          It is difficult to answer people you spout nonsense without pointing out how baseless their views are. If you call identifying stupid talk as stupid talk so be it.
          As for my son, it is none of your business why he chose to be vaccinated; he is an adult and a member of the bar in CA and NY. He can make his own decisions. So mind your own business

    2. There is also no biological plausible mechanism by which current vaccines would cause any impact on a woman’s period. But it’s happening. But nothing to see here- many of the commenters are assuring me the dreaded covid experimental vaccine that causes the body to produce a known pathogen- the spike protein- is perfectly safe.


      Thank you for that citation to a reliable medical journal.

    3. Vaccines having an effect on your menstrual cycle is completely incompatible with the claim that there is “no biologically plausible mechanism by which current vaccines would cause any impact on women’s fertility.”

      It’s not just that “women associate their periods with their fertility” like the author says. Their periods are in fact associated with their fertility.

  13. I’m fine with the Tenth Circuit’s policy as described in the OP with the exception that I think that anyone who, as determined by their licensed health care provider, would have an allergic reaction or other serious contraindication to the vaccine should be granted automatic leave to appear via Zoom or other comparable remote means. That may be how the courts are operating in practice, but I’d prefer for that to be stated clearly upfront.

  14. Equal treatment before the law.

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