Western Michigan athletes win big against vaccine mandate

Western Michigan University is permanently barred from enforcing its COVID-19 vaccine mandate against student athletes and will pay nearly $35,000 in legal fees under a consent judgment issued Nov. 16 by U.S. District Judge Paul L. Maloney in Kalamazoo, Mich.

Under an agreement signed by attorneys for the athletes and the university, Western Michigan agreed that the preliminary injunction upheld by the U.S. Court of Appeals for the Sixth Circuit will be made permanent, ending the lawsuit brought Aug. 30 by two Catholic and two Protestant women’s soccer players. The suit was later expanded to include a total of 16 student athletes. The students were denied religious exemptions against the vaccine requirement issued Aug. 12 by WMU and its athletic department. The general student population at the 20,500-student school in Kalamazoo is not required to be inoculated against COVID-19.

“We’re very thrilled,” said David A. Kallman, senior counsel with the Great Lakes Justice Center, which represents the athletes. “It really affirms that there’s still some life and vitality in the First Amendment. People can have some protections in place.”

Western Michigan and the student athletes released a joint statement: “The student-athletes involved in the vaccine lawsuit and Western Michigan University have reached a settlement of the pending litigation, allowing both parties to move forward. The settlement entails the students in the suit being awarded permanent relief from the athletics vaccine mandate, although they will continue to abide by testing and masking requirements. The University will pay their legal fees in the amount of $34,000. The Court of Appeals acknowledged that all parties were acting in good faith. The University wishes the student-athletes well in their academic and athletic careers, and the student-athletes are excited to continue their academic and athletic careers at WMU.” The university declined further comment.

Athletes Emily Dahl, Hannah Redoute, Bailey Korhorn, Morgan Otteson, Jake Moertl, Kia Brooks, Aubree Ensign, Reilly Jacobson, Taylor Williams, Kaelyn Parker, Annalise James, Maxwell Huntley, Sidney Schafer, Danielle Natte, Nicole Morehouse and Katelyn Spooner will have to abide by university mitigation requirements for regular COVID testing and face coverings, the document said. The university agreed to pay $34,617 in attorney’s fees to Great Lakes Justice Center. Western Michigan admitted no fault or wrongdoing as part of the settlement judgment.

The vaccine mandate would have barred the students from competition and thrown them off their teams if they refused to get a COVID-19 vaccine. The university competes in Division 1 of the National Collegiate Athletic Association (NCAA). Judge Maloney issued a temporary restraining order against the mandate on Aug. 31, the deadline for the students to comply. The judge issued a preliminary injunction against Western Michigan on Sept. 9, which meant the students could continue to compete for the fall sports season. The university appealed to the Sixth Circuit for a stay of Judge Maloney’s order, but the appeals court refused in a unanimous opinion published Oct. 7.

“Enforcement of the university’s policy likely would deprive plaintiffs of their First Amendment rights, an irreparable injury,” read the 11-page opinion. “…On balance, plaintiffs’ strong likelihood of success on their free exercise claim carries the day.”

Many of the students—who are Catholic or Protestant—objected to the COVID-19 shots’ ties to abortion-derived cell lines that were used in some phase of research, development, testing or production of the emergency-use vaccines from Moderna, Pfizer-BioNTech and Johnson & Johnson. Some students said they did not want to defile their bodies as temples of the Holy Spirit or endanger their health or fertility. In court filings, Western Michigan argued that the religious exemptions were actually approved, except students would not be allowed to compete in intercollegiate athletics without the shot. Judge Maloney rejected that argument. Kallman argued the mandate violated the athletes’ constitutionally protected right to free exercise of religion.

The Western Michigan judgment could impact a host of other federal lawsuits challenging vaccine mandates in health care, education, the military and general employment, Kallman said. “This is going to expand beyond just Western Michigan and colleges,” he said. “It’s the same issues in businesses and the government’s attempt to enforce these vaccine mandates through the president’s order and the OSHA rules.” 

President Joseph R. Biden Jr. directed the federal Occupational Safety and Health Administration to create an emergency temporary standard requiring businesses with more than 100 employees to mandate full COVID vaccination or weekly testing for their workers. The rule would affect more than 84 million workers in the United States. 

The U.S. Court of Appeals for the Fifth Circuit reaffirmed its stay of the emergency standard, saying the mandate “threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s).” The appeals court called the OSHA standard “fatally flawed” and “its promulgation grossly exceeds OSHA’s statutory authority.”