By Adam Epstein, JD/MBA
On October 7, 2021, the Sixth Circuit Court of Appeals declined to stay an injunction inDahl v. Bd. of Trs. of W. Mich. Univ.,[1] thereby allowing sixteen student-athletes at Western Michigan University (WMU) to participate in varsity athletics without having to receive a COVID-19 vaccine shot as the school required. The case was appealed on an Emergency Motion from the U.S. District Court for the Western District of Michigan, and the three Sixth Circuit judges unanimously agreed with District Judge Paul Lewis Maloney that the student-athletes should prevail.
WMU required that student-athletes be vaccinated against COVID-19, but it had a policy in which it would consider, on a discretionary basis, individual requests for medical and religious exemptions. All sixteen of the student-athletes applied for exemptions, but the Sixth Circuit noted that WMU either “ignored or denied their requests and barred them from participating in any team activities.”[2] As a result, the student-athletes sued and alleged that WMU and its officials violated their rights under the First Amendment’s Free Exercise Clause.
The District Court issued a preliminary injunction and allowed the unvaccinated student-athletes to participate in team activities, but the order also allowed WMU to require them “to wear face coverings and take COVID-19 tests to participate in athletic events.”[3] WMU asked the District Court to stay the injunction, but it denied that motion. WMU and its officials then asked the Sixth Circuit to stay the District Court’s preliminary injunction pending an appeal. The Sixth Circuit referred to the appeal as “a close call,”[4] but upheld the injunction and declined to issue a stay because it opined that the student-athletes would “likely succeed on appeal.”[5]
The Policy
According to WMU’s policy, “to maintain full involvement in the athletic department” students must be vaccinated against COVID-19.[6] Announced by text message, the policy stated, “[m]edical or religious exemptions and accommodations will be considered on an individual basis.”[7] Several student-athletes sought religious exemptions, but according to the record, the WMU official who processed applications for exemptions confirmed that she barred every unvaccinated student-athlete from “engag[ing] in team activities.”[8]
Procedural Analysis
The Sixth Circuit Court of Appeals outlined a procedural analysis to determine whether it should grant a stay pending an appeal. The Court offered four considerations but noted that a District Court’s decision to issue a preliminary injunction is “highly deferential.”[9] The four considerations include, “(1) the likelihood that the party seeking the stay will prevail on the merits; (2) the likelihood that the moving party will be irreparably harmed; (3) the prospect that others will be harmed by the stay; and (4) the public interest in the stay.”[10] The court that the first factor (the likelihood of success) is often the “determinative factor” in the analysis.[11]
Substantive Analysis
The Sixth Circuit then discussed the strength of the student-athletes’ Free Exercise claim and that to prevail, they had to show that WMU “burdened their religious exercise and that defendants’ conduct cannot withstand the appropriate level of scrutiny.”[12] The Sixth Circuit cited several of its own (and U.S. Supreme Court) decisions offering that a state may not prohibit the free exercise of religion either directly or indirectly.[13] For example, the Court quoted Trinity Lutheran Church of Columbia, Inc. v. Comer,[14] “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions,” also trigger scrutiny under the Free Exercise Clause.[15]
To the Sixth Circuit, WMU’s denial of granting religious exemptions to the student-athletes “burdened their free exercise rights.”[16] The Court stated,
The University put plaintiffs to the choice: get vaccinated or stop fully participating in intercollegiate sports. The University did not dispute that taking the vaccine would violate plaintiffs’ “sincerely held Christian beliefs.” Yet refusing the vaccine prevents plaintiffs from participating in college sports, as they are otherwise qualified (and likely were recruited) to do. By conditioning the privilege of playing sports on plaintiffs’ willingness to abandon their sincere religious beliefs, the University burdened their free exercise rights.[17]
WMU maintained that the Free Exercise Clause only prevented it from forcing the student-athletes to choose between their religious beliefs and a “generally available benefit,” which, according to WMU, does not describe playing college sports.[18] The Sixth Circuit disagreed and stated, “all plaintiffs must show is that they are “otherwise eligible” to play intercollegiate sports—that is, eligible apart from the regulation that burdens their religious exercise. And there is no question plaintiffs are otherwise eligible, as they are already student-athletes.”[19]
The Court continued and addressed the indirect nature of the coercion or penalties involving the free exercise of religion.
Fair enough, the University’s vaccine mandate does not coerce a non-athlete to get vaccinated against her faith because she, as a non-athlete, cannot play intercollegiate sports either way. But the mandate does penalize a student otherwise qualified for intercollegiate sports by withholding the benefit of playing on the team should she refuse to violate her sincerely held religious beliefs. As a result, plaintiffs have established that the University’s vaccination policy for student-athletes burdens their free exercise of religion.[20]
Strict Scrutiny Analysis
The Sixth Circuit stated, “Of course, not every burden on the free exercise of religion is unconstitutional. A neutral law of general applicability “need not be justified by a compelling governmental interest” even if the law incidentally burdens religious practices. But a law that is not neutral and generally applicable “must undergo the most rigorous of scrutiny.”[21] Further, “where a state extends discretionary exemptions to a policy, it must grant exemptions for cases of “religious hardship” or present compelling reasons not to do so.”[22]
The Court offered that WMU’s vaccine mandate did provide a “mechanism for individualized exemptions” and that forms were provided to student-athletes to request an accommodation for an exemption from the vaccine for religious reasons.[23] However, “[m]edical or religious exemptions and accommodations will be considered on an individual basis.”[24] Since WMU retained discretion to extend exemptions, the policy is not generally applicable and WMU must therefore prove “that its decision not to grant religious exemptions to plaintiffs survives strict scrutiny.”[25]
WMU argued that the policy is neutral and generally applicable, but the Sixth Circuit stated that the manner in which WMU “executed the policy ignores the Supreme Court’s instruction that we put front and center the terms of the policy itself, as the “creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given.”[26] The Court continued,
That is so, the Supreme Court explained, because the existence of a system to grant individualized exceptions “’invite[s]’ the government to decide which reasons for not complying with the policy are worthy of solicitude,” id. (citation omitted), which, we note, fairly describes the policy at issue here. The University’s policy says it evaluates whether to grant religious exemptions “on an individual basis,” thereby rendering the policy not generally applicable regardless of whether the University has granted any exemptions.”[27]
Because WMU’s policy was “not neutral and generally applicable,” the Sixth Circuit analyzed the policy through “strict scrutiny” which required WMU to show that its failure to exempt plaintiffs serves “’interests of the highest order’ and is narrowly tailored to achieve those interests.”[28] According to the Court, WMU’s interest in fighting COVID-19 is compelling, but it was not narrowly tailored, and WMU allows its general student body to remain unvaccinated. The Sixth Circuit stated, “One need not be a public health expert to recognize that the likelihood that a student-athlete contracts COVID-19 from an unvaccinated non-athlete with whom she lives, studies, works, exercises, socializes, or dines may well meet or exceed that of the athlete contracting the virus from a plaintiff who obtains a religious exemption to participate in team activities.”[29]
The Court continued,
But the question before us “is not whether the [University] has a compelling interest in enforcing its [vaccine] policies generally, but whether it has such an interest in denying an exception” to plaintiffs, and whether its conduct is narrowly tailored to achieve that interest […] Defendants present neither evidence nor argument on that score. To the contrary, they contend only that their conduct survives rational basis review.[30]
The Sixth Circuit stated that WMU “likely violated” the student-athletes’ First Amendment rights and therefore declining the stay was the right call from its legal perspective and analysis.[31] However, the Court continued, “We do not doubt defendants’ good faith, nor do we fail to appreciate the burdens COVID-19 has placed on this nation’s universities. To that point, our holding is narrow. Other attempts by the University to combat COVID-19, even those targeted at intercollegiate athletics, may pass constitutional muster.”[32]
Considerations
There are many considerations and questions that sports law academics and practitioners can take away from this Sixth Circuit decision. There might have been more legal analysis had there been more time to address the issues at both the District Court and Court of Appeals were it not for an emergency motion to stay an injunction pending appeal. Nevertheless, here are some additional items that readers should consider:
- [33]
- [34]
- [35]
- [36]
- [37] That inconsistency certainly did not help WMU’s cause.
- The Court supported its decision by comparing it to an Indiana University case a case that upheld the vaccine mandate because it was neutral and generally applicable, and therefore subject to rational basis review, when it provided a non-discretionary religious exemption to students.[38]
- The Court used the expression “vaccine mandate” on five occasions and never characterized it as a “vaccine policy.” The force and use of the word “mandate” when involving a First Amendment rights issue and a public institution with sole discretionary decision-making authority on religious exemptions likely made the Sixth Circuit uneasy with the policy.
- Based upon the Sixth Circuit decision, there is no evidence that WMU announced its vaccine mandate to student-athletes by more than just a text message, but one would hope so.
- If the athletic department and its officials had their own COVID-19 policy separate from the university, one might consider the degree to which athletic departments (in general) are part of the university or, instead, are run as separate, independent entities on campus.
Adam Epstein is sports law professor in the College of Business Administration at Central Michigan University. He has written four textbooks including Sports Law (2013), and has published almost 60 articles in a variety of law-related areas, many of which in periodicals produced by Hackney Publications.
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[1] Dahl v. Bd. of Trs. of W. Mich. Univ., 2021 U.S. App. LEXIS 30153.
[2] Id. at *1.
[3] Id. at *3.
[4] Id. at *1.
[5] Id. at *2.
[6] Id. Later in the decision, the Court seemed to clarify a bit in that all WMU student-athletes had to provide “proof of at least one dose” of a COVID-19 vaccine…” Id. at *10.
[7] Id. at *2.
[8] Id.
[9] Id. at *3.
[10] Id.
[11] Id.
[12] Id. at *4.
[13] Id. at *4-5.
[14] Id. (citing Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017).
[15] Id. (quoting Trinity Lutheran Church of Columbia, Inc., at 2022).
[16] Id. at *6.
[17] Id. at *6-7.
[18] Id. at *7.
[19] Id. at *7-8.
[20] Id. at *8.
[21] Id. at *9 (citing Monclova Christian Acad. V. Toledo-Lucas Cnty. Health Dept., 984 F.3d 477, 479 (6th Cir. 2020) (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993)).
[22] Dahl at *9.
[23] Id. at *10.
[24] Id.
[25] Id.
[26] Id. at *11.
[27] Id.
[28] Id. at *14 (citing the District Court’s opinion in Dahl v. Bd. of Trs. of W. Mich. Univ., No. 1:21-cv-757, slip op. at 7-8 (W.D. Mich. Sept. 13, 2021)).
[29] Id. at *14-15.
[30] Id. at *15-16.
[31] Id. at *16.
[32] Id. at *17.
[33] Id. at *13.
[34] Id. at *17.
[35] Id. at *17-18.
[36] Id. at *7.
[37] Id. at *12.
[38] Id. at *10 (referencing Klaassen v. Trs. of Ind. Univ., F. Supp. 3d., 2021 WL 3073926, at *25 (N.D. Ind. July 18, 2021), aff’d, 7 F.4th 592 (7th Cir. 2021).
