The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Louisiana Medical School's Vaccination Rules Temporarily Blocked

But the decision turns heavily on Louisiana law, and on the nature of this particular set of rules.


In Tuesday's decision by Judge Terry A. Doughty (W.D. La.) in Magliulo v. Edward Via College of Osteophatic Medicine (VCOM), the judge issued a temporary restraining order against applying the VCOM immunization rules to plaintiffs, who had religious objections (see this letter and this story that it links to, as well as this document, which the letter doesn't cite but seems to support some of its assertions). VCOM, a private college that is nonetheless on the campus of the public University of Louisiana in Monroe (and appears to be entwined in various ways with ULM) had a shifting set of rules:

At first, VCOM gave at least one of the plaintiffs "a deadline of July 19, 2021 to either defer school for a year or get a COVID-19 vaccine"; but it then changed the policy on July 16 to provide that students could also have the option to "be accommodated by completing all requirements except patient care duties or be placed in an alternate education pathway that defers clinical involvement." Then on August 7 VCOM changed the policy further to provide religious objectors another option—they could attend under these conditions:

1) Their religious exemption was time-limited until one or more of the vaccines currently under Emergency Use Authorization received full and final approval for use by the U.S. Food and Drug Administration. At that time, they would either need to be vaccinated or apply again for an exemption;

2) Complete the COVID-19 module and the COVID-19 vaccination modules and pass those portions in their Microbiology or Immunology course by the end of the block;

3) Correctly wear an approved mask at all times on campus, except when eating or drinking, and to stay six feet away from others when eating or drinking. Failure to wear a mask would result in suspension;

4) Must not come to campus, or any VCOM event, if ill, or have symptoms of an illness, which also must be reported on, notify the COVID officer, and have a COVID-19 test if having any common COVID-19 symptoms;

5) Read and follow the additional guidance set forth by the CDC regarding safety protocols for institutions of higher education campuses;

6) May attend the Principle of Primary Care labs and OMM labs; however, must identify a student who agrees to work with a student who is not vaccinated, as the labs involve touching and close contact with another student;

7) May complete all educational requirements for your academic year except those activities where you are acting as a medical care provider including, but not limited to, Standardized Patient Examinations and Early Clinical Experiences, which will be deferred until the threat of COVID-19 has subsided or the vaccine is approved ….

The court concluded that this new policy violated Louisiana law:

All 50 states have mandatory vaccination laws requiring their citizens to be vaccinated. Three types of exemptions from mandatory state vaccination laws exist: medical, philosophical, and religious exemptions. California is among the states with the strictest vaccination exemption requirements, while Louisiana is on the opposite end of the spectrum, allowing all exemptions.

In Zucht v. King (1922), the U.S. Supreme Court affirmed state's rights to impose their own requirements regarding vaccinations. Louisiana has done so. La. R.S. 17:170 E. specifically states that any school or facility listed in Subsection A [which includes colleges and universities] cannot require a person to comply with R.S. 17:170 if the student, or the student's parent or guardian either submits a written statement from a physician stating the procedure is contraindicated for medical reasons, or a written dissent from the student or his parent or guardian is presented….

This Court agrees with Plaintiffs' argument that the word "dissent" in R.S. 17:170 E. covers both religious and philosophical exemptions….

La. R.S. 17:170 F. provides the mechanism for an outbreak of a vaccine-preventable disease at VCOM. VCOM is authorized to exclude from attendance unimmunized students and clients until the appropriate disease incubation period has expired or the unimmunized person presents evidence of immunization.  However, the mechanism requires the recommendation of the Louisiana Office of Public Health.

VCOM does not have a recommendation from the Louisiana Department of Public Health to exclude from attendance unimmunized students. Therefore, under Louisiana law, students at VCOM are not subject to VCOM's mandatory vaccine requirements if the student provides a written statement from a physician that the procedure is contraindicated for medical reason or presents a written dissent from a student or student's guardian.

La. R.S. 17:170 does not provide a method for VCOM to judge or restrict the student dissent. A Court is to interpret law, not write it. If the legislature of Louisiana had intended for a college to be able to restrict students' dissents, it would have put that language in the statute. Student dissent can be based upon religious beliefs or any other reason. By voting to accept, but place restrictions upon the Plaintiffs' student dissent, VCOM has violated the provisions of La. R.S. 17:170. Rather than restrictions, VCOM's only options are either to allow the dissenting students to attend VCOM, or to obtain approval from the Louisiana Department of Health to exclude unimmunized students from admission….

The court also held that VCOM's actions likely violated the Louisiana Preservation of Religious Freedom Act (a state analog of the federal Religious Freedom Restoration Act, seemingly because VCOM's actions appeared haphazard and inconsistent with state law:

VCOM must demonstrate its actions are in furtherance of a compelling governmental interest, and that it used the least restrictive means of compelling that governmental interest. VCOM can likely show a compelling state interest (safety of students, employees, and patients), but is unlikely to meet the second prong, that it used the least restrictive means of compelling that interest….

VCOM changed its policy effective July 16, 2021 to allow exemptions based upon medical or religious beliefs but to also require a student that received a medical or religious exemption to not participate in educational settings that involve hands-on care of patients or classmates, to wear a mask on campus, have frequent testing for the COVID-19 virus and to use the application.

When VCOM approved the Plaintiffs' religious exemptions on August 6, 2021, VCOM did not follow its own policies, but added … [further] restrictions ….The Plaintiffs still were not allowed to participate in Standardized Patient Exams and Early Clinical Experiences (which are required to advance or graduate), even if wearing a mask. Therefore, VCOM is unlikely to be able to show that it used the least restrictive means of compelling their interest of keeping students, employees, and patients safe. {These restrictions apply to "unvaccinated students," not students who actually test positive for the COVID-19 virus.}

 The court later added:

VCOM placed a "Scarlett Letter" type list of requirements on the "unvaccinated," which will preclude the Plaintiffs from completing required components of their required curriculum. Also, the Plaintiffs would be required to disclose their "unvaccinated" status to other students in order to obtain the other students' consent to work with the "unvaccinated." {Despite the fact that VCOM students are allowed to mingle with ULM students, who don't have these requirements.} …

The Plaintiffs' potential harm of a constitutional violation, ability to complete their education, ethics charges, and possible expulsion outweighs VCOM's interest. Although VCOM has an interest in protecting its students, its students are allowed to attend ULM functions, participate in ULM intramural events, study in the ULM library and mingle with ULM students, who are not required to get the vaccine.

The public interest is not disserved. Granting the TRO would allow the parties to follow the laws of the State of Louisiana.

Two thoughts:

  1. The court's Louisiana RFRA / strict scrutiny analysis was closely focused on the details of the VCOM scheme, and its seeming incompatibility with the other Louisiana statute (and with ULM's lack of a vaccination mandate). It didn't discuss what would happen to a vaccination mandate that seemed more internally consistent, and its reasoning doesn't set much of a precedent for those mandates.
  2. Under Pennhurst State School & Hospital v. Halderman (1984), the Eleventh Amendment state sovereign immunity principle forbids federal courts from ordering state officials to follow state law. VCOM, however, didn't cite that case, and neither did the federal court—perhaps on the theory that, even if VCOM is intertwined enough with the state to be a state actor, it's not actually a part of the state government and therefore isn't protected by the Eleventh Amendment.