In my previous two posts on this subject, I explained that, lacking the protections of constitutional and federal antidiscrimination law, students attending private colleges and universities must resort to state law to vindicate their religious liberty interests against vaccine mandates. If applicable state law prohibits religious discrimination in institutions of higher education, students have a powerful means by which to prosecute their request for a religious exemption to a school’s mandate.

To be clear: state antidiscrimination law is unlikely to require the promulgation of religious exemptions under such circumstances. But where a college or university recognizes religious exemptions to its vaccination mandate (as virtually all do), the institution may not discriminate against students on the basis of religion in its administration of the exemption.

However, many private colleges and universities are taking it upon themselves to decide which religious beliefs are worthy of accommodation and which religious beliefs are not. That is patently discriminatory and unlawful. So long as the student’s religious beliefs are sincerely opposed to the vaccination in question, deeming those beliefs unworthy of accommodation is a form of discrimination on the basis of religion.

This discriminatory arrogation occurs in many different ways, such as:

  • Some schools have required that students submit a signed letter from one of their religious leaders in support of their religious exemption request. But what if the student does not belong to an organized religion with cognizable leaders? This requirement discriminates against such students on the basis of their religion. 
  • The signed letter requirement also poses a problem where the student holds religious beliefs that differ from those of his or her religious denomination. That would make it exceedingly difficult for the student to secure the required letter. Schools are not permitted to discriminate against heretics. It is the student’s own religious beliefs that are paramount under antidiscrimination law—not those of any rabbi, imam, pastor, bishop, patriarch, or pope. (Further, schools are not qualified to distinguish orthodoxy from heresy.)
  • Some schools seem to be granting accommodations only to those students whose religious beliefs preclude the receipt of any and all vaccines. But that constitutes discrimination against a student whose religious beliefs preclude the receipt of only the particular vaccine being mandated. A school could not deny a Muslim student’s request for an exemption to one particular vaccine (perhaps because it was created with pork gelatin) while granting an exemption from that same vaccine to another student because that other student’s faith opposed all immunization as a rule.
  • For some students (particularly Catholic students), opposition to the COVID-19 vaccine is grounded upon the concept of cooperation with evil (i.e., the original abortion from which the cell line used to develop the vaccine was derived or tested upon) and the religious obligations adhering to the exercise of one’s properly informed conscience. School administrators either cannot understand, choose not to understand, or completely ignore the fact that opposition to the COVID-19 vaccine derived from these principles is just as religiously sincere and binding as any other religiously based objection to the vaccine. A Catholic student whose properly formed conscience leads him or her to conclude that the COVID-19 vaccine cannot be taken commits a very serious sin by taking the vaccine. Hence to reject that student’s request for a religious accommodation while granting the requests of other students constitutes unlawful religious discrimination.

Perhaps some colleges are beginning to recognize this. Hofstra University recently informed its students that it will no longer be offering or honoring religious exemptions to its COVID-19 vaccination policy for the Spring 2022 semester—not even for those few students who were granted a religious exemption for the Fall 2021 semester.  This raises contractual issues of good faith and fair dealing, but it would seem to limit the university’s potential exposure to liability on account of religious discrimination.

Understandably, school administrators want to avoid granting exemptions to students whose religious arguments against vaccination are pretextual. But they cannot use unlawful means—religious discrimination—to achieve an otherwise legitimate objective, and that’s exactly what many have been doing. A legal challenge to these practices could succeed under the circumstances outlined in this series.

 

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.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at info@fedsoc.org.