A significant number of Americans have religious objections to the COVID-19 vaccines currently available. These objections are typically (but not invariably) grounded upon the fact that every COVID-19 vaccine in the United States has been developed with or tested upon cell lines obtained through a procured abortion.

When faced with a COVID-19 vaccination mandate, most Americans with a religious objection can attempt to challenge the mandate, or seek an exemption from it, via the First Amendment, the Religious Freedom Restoration Act, or Title VII of the Civil Rights Act of 1964 (depending upon their particular circumstances).

One group of religious objectors, however, lacks all such recourse: students attending (or wishing to attend) private colleges and universities. In this first of three blog posts, I will examine the legal plight of these students and set forth the most plausible grounds upon which they can defend themselves against COVID-19 vaccination mandates. (As will be discussed in my next post, the most viable argument for such students is that their schools’ exemptions policies violate state antidiscrimination law by giving preference to some sets of religious beliefs over others.)

For students attending public colleges and universities, the First Amendment (incorporated and applicable to the states via the Fourteenth Amendment) provides some protection from vaccination mandates in the form of Free Exercise claims. But private colleges and universities are generally not considered to be state actors, and, as such, are not subject to the protections of the Constitution.

Nor do students find protection against religious discrimination in the Civil Rights Act of 1964. Title VII covers religious discrimination, but is applicable only to employers and employees. Title II covers religious discrimination, but is applicable only to places of “public accommodation.” The term “public accommodation” has been construed narrowly, and case law suggests that Title II does not cover the situation of a college or university student. (An unresolved and promising avenue of inquiry is whether Title II would cover discrimination with regard to university housing, dormitories, and eateries.)

Title VI covers discrimination with regard to any program or activity receiving federal assistance. This explicitly includes colleges and universities. However, it only extends to discrimination on the basis of “race, color, or national origin.” It explicitly—and intentionally—does not extend to religion. This was done to protect religiously affiliated institutions from lawsuits alleging discrimination on the basis of religion. (In hindsight, a better approach could probably have been found.)

Consequently, private college and university students receive no clear protection against religious discrimination by either federal constitutional or civil rights law. Their only recourse, apparently, is whatever is available to them under state law.

State constitutional law is most likely to be unavailing because, as mentioned, private schools are not considered to be government actors. As such, students are left to whatever protections against religious discrimination are contained in state and local legislation.

In my second post on this subject, I will examine the antidiscrimination law of one state (New York), and show how it could be used by students at private colleges and universities to vindicate their sincerely held religious objections to vaccination mandates. (Although the focus of that post will be on New York law, the principles identified and reasoning employed should be of relevance to students in any state with laws protecting against religious discrimination in higher education.)

 

For a more thorough analysis of this issue, please see the most recent draft of an upcoming article I authored on the subject: When Exemptions Discriminate: Unlawfully Narrow Religious Exemptions to Vaccination Mandates by Private Colleges and Universities, by Ronald J. Colombo.

 

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