As students prepare return to universities across the country, many schools are putting in place Covid vaccine mandates. These mandates require proof of vaccination, and typically include medical and religious exemptions. But, as Professor Ronald Colombo's new paper raises, some kinds of exemption schemes may be unjustly discriminatory. Beyond the issue of exemptions, some students and staff object to the mandates as such. A group of students challenged one such mandate at Indiana University; in July, a district court judge sided with the university, and the ruling was recently upheld 3-0 by the U.S. Court of Appeals for the Seventh Circuit. These cases, the nature of the mandates and exemptions, and more were discussed in this virtual program.
- Prof. Ronald J. Colombo, Professor of Law, Maurice A. Deane School of Law, Hofstra University
- Moderator: Stephanie Taub, Senior Counsel, First Liberty
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.
Evelyn Hildebrand: Welcome to The Federalist Society's virtual event. This afternoon, August 17, we discuss vaccine mandates and exemptions: public universities, private colleges, and more. My name is Evelyn Hildebrand, and I'm an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call.
Today, we are fortunate to have with us Professor Ronald J. Colombo, and Ms. Stephanie Taub, who will moderate the discussion this afternoon. Stephanie is Senior Counsel at First Liberty Institute, where she focuses on litigation, appellate advocacy, and legal education. She has written numerous articles, which have been published in a variety of different places, including the Texas Review of Law and Politics, National Review, the Daily Signal, the Washington Times, the Des Moines Register, and the New York Daily News. She is also a 2017 James Wilson Fellowship recipient. Stephanie will introduce our speaker, Professor Ronald J. Colombo.
After our speaker gives opening remarks, we will turn to the audience for questions. We will be accepting audience questions throughout the event this afternoon. If you do have a question, please enter it into the Q&A tab at the bottom of your screen, and our speaker will answer it as time permits. With that, thank you for being with us today. Stephanie, the floor is yours.
Stephanie Taub: Wonderful. Thank you, Evelyn, for the introduction. And thank you to The Federalist Society for hosting this discussion on a very timely and important issue. So, today, we will be discussing vaccine mandates, particularly in the context of public and private universities. So, we'll talk a little bit about their legality, the religious and other exemptions, and some of the legal challenges that have come up already.
So, we're very fortunate to have with us today, Professor Ronald Colombo. He is a law professor at Hofstra University, since 2006. He teaches courses in corporations, securities, and contract law. His research and scholarship focuses primarily on the application of non-economic principles and norms to these fields, so it's relevant here his scholarship includes the interaction of First Amendment law on these fields. So, he's the author of The First Amendment and the Business Corporation, published in 2015. And some of his scholarship has touched on religious liberty issues, like the article that we'll be discussing today.
So, to frame the discussion of vaccine mandates, we have a fantastic journal article from Professor Colombo. It's titled, "When Exemptions Discriminate, Unlawfully Narrow Religious Exemptions to Vaccination Mandates by Private Colleges and Universities."
So, Professor Colombo, thank you for being here today. Can you tell us a little bit more about your article and the importance of the arguments it raises, in light of the fact that over 600 colleges and universities have already issued some form of vaccine mandate for students or faculty.
Prof. Ronald J. Colombo: Well, first of all, thank you so much, Stephanie. And the work that you are doing, and the work that the First Liberty Institute is doing, is tremendous, and tremendously important in this area. So, hats off to you and your team for being at the forefront of this, in the trenches. You know, I'm just sitting behind writing articles. You're actually doing the fighting. So, God bless you for that. And thank you to The Federalist Society for hosting this. And, of course, to our participants here, for showing up.
So, my article addresses the fact that, in writing the article, I came to discover that students at private colleges -- colleges and universities -- are among the least-protected classes of individuals in our society. If you go to a public university, or a public college, you have constitutional protections. If you go to a private institution, however, those do not apply. And, moreover, the federal civil rights legislation that does cover colleges and universities does not address religious discrimination.
So, unless you are in a state -- and I focused on New York -- and let me just start by saying, what I say is going to be focused on New York. New York's the only state I researched. However, it would be applicable to any state that has on its books, legislation similar to New York's. So what New York has on its books is legislation that states New York human rights law, that colleges and universities -- private colleges and universities -- cannot discriminate against their own students on the basis of a variety of characteristics, including religion.
If that religious tag weren't there, those students would have zero protection under federal law, as far as I was able to discern, and none under the Constitution. So, you know, depending on the state you are at, if you are a religious student at a private school -- private college or university -- you really are vulnerable to the type of discrimination that is inconceivable for many of us to -- to conceive of.
So, what I had to do -- so, so, that's what my article focuses on. So now, getting to the vaccine situation -- as we know, a lot of colleges and universities have rolled out vaccination mandates. What I've discovered, and what my article addresses, is that -- first of all, I'm not positing that private colleges and universities have the authority to lawfully mandate vaccinations among their students. It looks as though they do. The courts so far have said that they have. That's not the focus of my article.
Secondly -- at least in New York -- if they do roll out a mandate, they don't seem to need to promulgate an exemption for any reasons. They just don't seem to -- the law does not seem to. Again, this is beyond the scope of my article, so I'm granting -- but let's take for, you know, for granted that they can promulgate these vaccination mandates, and they don't need an exemption. Okay, so where are we? Well, my article addresses the situation where they do provide for an exemption for religious purposes. And, what I've discovered is, once they take that step, those exemptions must be nondiscriminatory. Like, you cannot -- so if you're going to roll out a religious exemption, you cannot discriminate on the basis of religion, with regard to the promulgation and implementation of that exemption.
And, what I've found, is that colleges are apparently blowing right through this requirement not to discriminate on the basis on religion, when it comes to these exemptions. And I've identified at least four ways in which they do this. Sometimes, it's facially, just on the policy space itself. But, oftentimes, it's in the implementation. Like, the policy might be facially neutral, but it's being implemented in a way that is discriminatory. And I'll get to that in a moment. Let's see, what else should I -- I'm trying to think what else should I add to round out the -- the context here. Well, here's one interesting thing.
So, in the article -- for those of you who have read it -- I had to rely upon a lot of federal law and constitutional law, because there's an utter lack of cases under New York human rights law, addressing this very situation. The cases do not seem to come up. I guess that's because most colleges do not openly discriminate against students on the basis of religion. Certainly, the whole Covid vaccination mandate is sui generis. I mean, the vast majority of colleges require vaccines that the state also requires. This is a very unique situation where private colleges are adding to that list, and then putting out exemptions that are very stringent, and very strictly being administered.
So, I think we do have a -- it may be a perfect storm, that's giving rise to these situations that has not -- you know, you haven't seen before. So, what I've had to do is rely on a lot of authority, analogous authority in other areas -- as any good lawyer or scholar would do -- and then apply it to the situation of religious exemptions to vaccination mandates. And, let me just, you know, get us past an initial hurdle. How can they get away with doing that? Because they do rely a lot on First Amendment jurisprudence. Now, as we all know, the First Amendment, the jurisprudence there -- a lot of it revolves around the power of the state, and separation of church and state issues. I'm not a fan of that term, but I'm using it because you all know what I mean by that.
So, how is that -- what does that have to do with discrimination? If you dig deeply into a lot of these cases -- these First Amendment cases -- you see that a core animating principle behind the religion court clauses and how they're -- how they're adjudicated, is discrimination. So, the Free Exercise Clause -- you know, you can't say you could -- you could build a, you know -- Christians can build their church here, but Muslims cannot. That's a free exercise violation, but why? It's because you’re discriminating. You're picking one religion over the other.
Smith, right, the Unemployment Division case v. Smith that we all know about, taught that a facially neutral promulgation that hurts religion -- now, that is okay. You can get away with that. But, once you start picking and choosing, and playing favorites, that is unconstitutional. Well, that's discrimination, right? So, I guess -- and I flesh this out in the article -- at the root of a lot of these First Amendment cases, even the Establishment Clause cases, is the sense that it’s unconstitutional for the government to play favorites among religions. The government must be neutral. And what's the opposite of neutrality? Discriminating, taking sides.
So, now, just to sort of then jump to the chase, how is it that schools -- and I look forward to questions from you and the audience, but how is it that schools are indeed discriminating on the basis of religion with regard to these exemptions? I've --I've identified at least four ways in the paper. These overlap -- let me just flesh them out. And, with that, I think we're well-armed to discuss the issue and ask informed questions.
One would be sort of -- you don’t see this very often, but overt discrimination, right? You could imagine a situation where a school would say, "The exemption's only available for Jehovah's Witnesses," or something like that. You couldn’t do that. And no school has been ham-handed enough to actually write that out. However, a lot of schools keep -- and this sounds conspiratorial, but you can go on websites and see this -- like, legitimate websites. They keep lists. Lists that say, "These religions don't commit their adherents to take vaccines and these religions do permit adherents to take vaccines."
And, if you then, as a student, apply for a vaccination exemption, the school religiously profiles you, and states, "Oh, well, you know, Stephanie is a Christian Scientist, so Stephanie can get the exemption, but -- oh, no -- Stephanie is a Roman Catholic. She can't get the exemption." Regardless of the beliefs that Stephanie put forth -- put forth in her own application, schools are, I would say, religiously profiling students, and saying, "These denominations get the exemptions, and these denominations don't get the exemptions. That is a form of religious discrimination. You're not allowed to do that.
Number two, I'd say there's the discrimination against heretics -- for lack of a better term -- or for those who hold heterodox beliefs. And this is a -- this is related to part one. As we know, certain bishops have made certain statements in the Catholic church about the vaccination. But -- as we also know -- not every Catholic believes absolutely everything that they're taught, and they grow up with, and that's in the Catechism that the Pope teaches, etc., etc. So, what if you belong to a religion that teaches A, but you believe B? Do you lose your rights? No, you can't.
If your belief in B is sincere and genuine, and the school decides it's not going to grant it to you -- it would if you belonged to a different religion, but, because of your professed faith, you're going to be religiously profiled. I say it's -- I call it now, discriminating against heretics. They're basically saying -- they're taking the role of the inquisitor, and they're saying, "As a Catholic, you must believe this. And if you believe something else, either it's not true, or we're not going to credit it." That's a form of religious discrimination, because it's the individual student who's applying for the exemption, not any particular bishop.
Third, there seems to be -- and this is facial, and you can look this up online, just by looking at the different policies that are out there -- is discrimination against what I'll call non-hierarchical, or discriminate -- religions who are non-organized religions. How does this work? Some schools -- and Hofstra, my own institution, is one of them -- for a student to get an exemption, the student must attach a letter from a religious leader of their organization. Well, that assumes a hierarchy. That assumes the existence of a religious leader. Not every religion operates that way.
So, what if you belong to a faith, a religion, that doesn't have a sort of a leadership structure, a hierarchy. You cannot provide that letter. The cases have been consistent, -- again, outside of the specific area of New York, because there are no cases. But the cases across the country have been specific that if you preference organized religion over religion that's not organized, that's a form of religious discrimination, as it must be.
And then, finally -- this is the trickiest one -- what I call, for lack of a better term, contingent religious obligations. Colleges seem to have trouble with that. So, it's easy to say, and easy to adjudicate a situation where a student says, "My religion teaches, I shall not consume pork, and so if a vaccine is made with pork gelatin, I can't touch it." But there are others religions -- and, again, Catholicism is the one that I know the most about here -- that has conscience-based objections, where the church has sort of definitive teachings, but then the application of those teachings is left up to the individual adherent to decide for himself or herself what their religious obligations are.
Colleges seem to be struggling with that. And they seem to think that unless there's a categorical denial, right -- thou shalt not take the vaccine, or thou shalt not take any vaccine -- unless your religion preaches that, you can't apply for the exemption. But again, what matters is, is this your religion? Yes. Does your religion teach that you have a -- under pain of sin -- an obligation to follow your conscience? If the answer to that is yes, and you put forth that in your application, and they deny it, they discriminated against you, because your religion perhaps is too complicated for them to understand, or it's not who they want to grant the exemption to.
So, with that -- and that's a lot to chew on, and I -- you know, I am from New York, so I talk a little bit fast. So let me -- let me pause now, and turn things over to Stephanie, who I imagine has a few questions, and the audience, that might have a few others. So, again, thank you for that time.
Stephanie Taub: Wonderful. Thank you so much for that overview. And this article raises a couple of points that really aren't addressed too often in debates over the legality of vaccine mandates and religious exemptions. The two main points you already touched on, but first was that, they usually talk about federal constitutional rights, and they often ignore what rights are available at the state level. And for students and professors at private universities, particularly private non-sectarian universities, they aren't really given much attention as to what possible venues they might have to -- and what possible rights they might have.
So that -- your article was really interesting for that -- for that perspective. And then, a lot of it, as you mentioned -- maybe these areas are relatively unexplored in state law, so arguing by analogy to federal constitutional law is a very -- very persuasive way to handle that.
And then next is, the article talks about the fact that not all religious exemptions are created equal. So, a lot of times, these discussions talk about whether they have a religious exemption or not, and that's kind of the end of the discussion -- whether you're required to have one. But they don't get into the nitty gritty of how they have to be -- how they have to be applied, and what considerations schools should take into account when applying them, and the pitfalls they need to avoid.
So, the -- and the argument in that section of your article would be applicable to either public or private school contexts, because it's mostly arguing from analogy to the federal -- federal constitutional law. So that was a very helpful explanation of the four main pitfalls that could befall a school. And maybe they don't even realize that they're -- that they're doing that.
Prof. Ronald J. Colombo: So, can I respond to a couple of those things? And, thank you, I mean you -- spot on. I think it's exactly what I'm trying to say. I wanted to say two things. Let me write them down, so I don't forget. Let's go in reverse order. Why are schools doing this? In other words, you know, why are they -- I think a lot of schools, quite frankly, are trying to get away with something and hoping they're not going to get called on. The law is not clear here. And this will lead to point two I want to make.
So, for example, I was on a homeowners' association trustees board. We implemented all sorts of regulations about yard signs and political signs that, frankly, if challenged, we'd lose. We'd just lose. But most people don't challenge. Most people obey. And if they don't obey, you threaten them with a fine, and then they'll obey. Or, if they really resist, maybe you drop the fine, and then they'll obey.
The point is, a lot of times, people push the envelope. And when the law is not settled or not very clear, I think it empowers universities to say, "Okay, I think we can get away with this." Maybe they know in heart of hearts, if challenged, they wouldn't win, but who's going to challenge them? They just don't expect it to happen. So, I think -- I think you have a lot of envelope-pushing going on here.
Number two, though -- and you mentioned faculty, you mentioned, like, students and professors. Without mentioning names, I've gotten my hands on -- at one institution, the same institution -- their form for a faculty and employee exemption, and their form for a student exemption. Right? The form for the student exemption did everything wrong. It required a letter from one's religious leader, and all that stuff. The same institution, their form for an employee exemption didn't have that. It was much better. It was more -- now, why would that be? Because there's a lot of federal law on the books.
The EEOC actually says you cannot discriminate against employees on the basis of religion. There's a rich, right, jurisprudence in that area, and they realize they can't do certain things. But, when it comes to students, they think they're in the wild west, they can do whatever they want. They're probably thinking, we don't have to give them an exemption, so whatever we give them, we could just make up.
But if you're in a state like New York, okay, yeah, you can make it up, so long as it's not discriminatory. And some of these made-up exemptions, as I've argued, are crossing the lines into -- are crossing a line into areas into discrimination.
Stephanie Taub: That's our first question from a listener. It was exactly that question. They ask, "Would it be discrimination if a private school allows religious exemptions for faculty and staff, but not for students." So is that -- what are they, what are the angles at play there?
Prof. Ronald J. Colombo: Okay, great question. They have to -- under federal law, EEOC law, they have to provide religious exemptions to faculty and to -- employees must receive a religious exemption to a vaccine mandate under federal law. Okay? So that's a given. Now, as to your specific question, if they give an exemption to faculty and staff, but not to students, are they violating the law? Or is it you're saying no, I -- no they don't, because students don't have federal rights with regard to religion.
In fact, a lot of schools -- and Hofstra was one of them, until yesterday, quite frankly -- only required the mandate of students. In other words, a lot of schools -- and this is just perverse on so many levels, if you think about it, but let me go down this road for a moment --a lot of schools have said, "Mandate our students to receive the vaccine, but not our own employees and professors." Now, that's a -- that's a classic externality, and it's a perverse one too, right? Because you're mandating the vaccination to people that are least likely to really need it, to protect those who probably should get it themselves, right? Or are most likely to need it. Let's put it that way.
So, but in any event, they've gotten away with that. No one has said that this is a discrimination against students because you're making students get the -- making them have the vaccine, but not the professors. No one's argued that successfully, and I don't see the basis for that.
Stephanie Taub: Yeah. So I guess maybe this would be a good time to kind of back up and just talk about the legality of vaccine mandates to begin with and some of the current challenges that are out there. There's the Indiana University lawsuit right now, where students are arguing that their -- that their school's vaccine mandate violates their Fourteenth Amendment rights to bodily integrity, bodily autonomy, and medical treatment choice. And so, can you tell me a little bit about that -- that argument. And the court, so far, has not accepted it. It went up to the Seventh Circuit, and it was not accepted, so --
Prof. Ronald J. Colombo: Yeah, well, this is-- and again, Stephanie, I invite you to flesh this one out, because I think, here, Stephanie knows more than I do, and is certainly the far better expert -- but as far as I've been able to tell thus far, the lawsuits claiming that these mandates are unlawful because it's emergency use only -- and there was a great New York Law Journal article on this, that I think really spelled out, compellingly, the argument for why an emergency use authorized vaccine cannot be mandated -- those arguments just haven't been winning. They -- as far as I can tell, they're 0-for-2, 0-for3, 0-for-4. They're not winning. The bodily integrity arguments don't seem to be winning.
I have yet to see a case in which a religious exemption denial has been litigated. Those cases are not out yet, and I'm hoping that, you know, part of that is proselytization. I'm hoping that there are parents listening, or people that know parents, that know people in school, that might say, "Wow, you know, maybe we do have a leg to stand on, here." In fact, I think -- and Stephanie, if you know, feel free to correct me -- I think, in the Indiana suit, one of the reasons the students lost -- one of the reasons, I think, that was cited to, I think -- is that judges said something like, "But, there's an exemption if you have a religious objection. So that's one of the reasons you lose."
Which suggests -- now, that was a public institution. though, so that's not private, so that's not -- it wasn't the focus of my article, but I -- it does suggest that in order to win these lawsuits with these mandates, an exemption might be required, right? -- especially for a public institution.
Stephanie Taub: Yeah, so the Seventh Circuit -- they said that it was -- one of the reasons was because most of the students qualified for a religious exemption, and then, subsequently, they -- the Indiana University also allowed an ethical exception. So, presumably, that could moot the entire case, now that there are -- now that there are exemptions. But then, also, the other -- the other main argument that the Court relied on was that, essentially, this isn't an unconstitutional condition, because you can go elsewhere to -- to receive your education. So that was -- so that's for that reason. And they found that there was no fundamental right to -- to not receive a vaccine here.
So that was -- that was one court case. There are others being challenged. There's the George Mason case. That's -- a professor brought a lawsuit against George Mason, based on his natural immunity, and arguing that that one violated his Fourteenth Amendment rights, as well. So that was recently filed. So, I don't know if you have any -- any thoughts on that one, or any --
Prof. Ronald J. Colombo: Yeah, that's Todd Zywicki, who, actually, I know, and that's an interesting argument too. I wish him the best of luck. And that's another thing that's interesting. People talk about following the science. A lot of people who have antibodies -- even at Hofstra, that is not an exemption. You've already caught Covid, so you don't feel like you have a need for the -- the vaccine. In fact, some of the studies suggest that the antibodies may even be more effective. And this, again, this isn't conspiratorial stuff. This is just science.
Antibodies may be even more effective than the vaccine, yet they're still imposing the vaccine on people who have antibodies. So, he's one of these people. Todd's a [inaudible 00:24:47] professor at George Mason -- contracted Covid, recovered, and now they're forcing him to take a vaccine. And his -- point is, "I have natural immunity, isn't -- this is -- it's not a religious exemption argument, but it's bodily integrity and sort of just patently unreasonableness, you know, and it's a public institution, so there are different rules.
Another takeaway -- and this is a statement against interest, because I do work at a private institution -- I really would think twice about sending my kid, in the future, to a school that's not public. Not only do you spend a lot more money, typically speaking, at a private university, but you just don't have the same rights you would at a public institution.
Stephanie Taub: Again, another -- another angle that your article touches on is potential contract theory arguments. So, it's possible that students, and especially professors, might have some sort of an argument based on breach of contract, if you're a returning student, or if you're a tenured professor, for example. Some of that was interesting. I don't know if we need to go into that, but it's a [inaudible 00:25:46] angle.
Prof. Ronald J. Colombo: No, no -- so, thank you. So, I definitely flagged this. I mean, there are so many different things you can go into. And that's something that also, I think, is completely unexplored. And if I can inspire someone on this call to take up that mantle -- in other words, think about this. As we all know through law school, you can't modify a contract without consideration. You can't, in the middle of a contract, say, "I'm going to change the -- I'm going to change the conditions now. And you still have to pay me what you agreed to pay me, etc., etc." You can't do that. Now, how do colleges get away with doing that? Well, they have, in their student policies, language that says, "We're allowed to amend our -- our policies in any way, you know, throughout -- at any time. And you're subject to them.
So the courts have upheld that type of stuff. Like, if I have a contract, you know, with Stephanie, and the contract states, "I can amend this contract unilaterally" that is generally enforceable. However, you know, facts matter. Is there a point at which the amendment is so material that it is no longer enforceable, it is at breach? Mandating the emergency-use-only authorized vaccine in the middle or the last year of someone's college education as a condition for them to maintain that education and continue their degree -- I'd love to see that challenged, as a contracts professor. I think that really pushes the limits of, you know, is that unconscionable? Are you really allowed to do that? Does that clause give you that much power? I don't go into this in my -- my argument is -- my article's all about, again, religious exemptions. But that's an area that someone really ought to look into.
Stephanie Taub: And then, all right, so we -- we’ve talked about whether you're prima facie allowed to have this sort of vaccine mandate -- and that's currently being decided by the courts -- and then whether universities are required to offer that. So the answer is, it depends. There are a few situations that -- I think your article collects some of these. But when a public school might not be allowed to -- or might be required to -- offer religious exemption, if there was any sort of evidence that you were discriminatorily targeting a religion in how you're -- how you're employing this vaccine mandate roll out, if you're granting a non-religious exemption, you -- you have to also grant a religious exemption, unless you can meet the strict scrutiny. At least there's an argument under Roman Catholic Diocese and Tandon.
Prof. Ronald J. Colombo: Oh, I would totally agree with that with regard to public institutions, right. With a public institution, right, that's RIFRA, or that's the state RIFRA, or, yeah. But, if it's a private institution, I'm not sure if that's the case. But I agree with you completely if it's a public institution. Once you have that medical exemption, I think you now are required to have the religious exemption.
Stephanie Taub: Yeah, and then -- so that brings us to the next comment from one of the listeners who's talking about the rights of students at religious schools. So, a lot of times -- so, they're talking about a Christian student enrolled in a yeshiva, or a Muslim student enrolled at a Catholic school, are there any considerations there? I guess you want to address that.
Prof. Ronald J. Colombo: Yeah, yeah, I can. So, the New York civil or the New York human rights law, which is what I focused on -- and again, I imagine, I just repeat this -- your state probably has one as well. And you say, "I'll look into it and see what it covers." New York human rights law specifically carves out religious schools, right? So, if you're a Catholic school, or a religion school or a yeshiva, you can set your -- you can discriminate on the basis of religion, for reasons that might be obvious. My note doesn't go down that road, so I haven't explored the contours of that. So this, this article focuses on the schools that are non-sectarian.
Stephanie Taub: Yeah, so that's, that's exactly right. Schools that are religious generally have a right to create a community that is consistent with their own religious beliefs. So that's what makes a Catholic school a Catholic school, is that they can abide by their own Catholic beliefs, for example. And the same with a yeshiva and a Muslim school -- of any faith. And so, really what you're -- what you're considering here is --see, I had another, another thought here. So, yeah, you have to look at the particular state laws that are involved if you have religious freedom laws that go beyond Smith when we're talking about the rights of students at private universities in general.
And, so, now let's go to the -- actually, the heart of your article, which is those nitty gritty ways in which -- if your school's decided to give a religious exemption, you have to make sure that you do so in a non-discriminatory way. And some schools might be -- might be well-meaning, we’ll give them the benefit of the doubt, here, and -- but they just don't know how to do it, or they're not sure, or they're concerned about insincerity. That would be an issue that would come up.
Prof. Ronald J. Colombo: Well, now, this is a very real challenge that I tried to acknowledge in the piece, you know. Do I think, well, okay, there is a debate raging as to whether or not higher education is, itself, biased against students of faith, generally speaking. Right? We could probably spend an hour on that subject, and there's evidence to believe that it is. But let's, for argument's sake, put that aside. Let's imagine that these are well-meaning university administrators. They have no bias against any particular students or particular religions. They're just trying to do their job. They have a policy of vaccination. What does that mean? That means they want everyone to be vaccinated.
They want to promulgate a religious exemption because they don't want to -- almost, virtually everyone that does have a mandate, has a religious exemption. The numbers are in the 90th percentile, -- 95, 95, 97. Very few -- I'm not aware of any universities that have a -- I mean, they might be out there, but they're extremely rare -- that have a mandate without a religious exemption. Religious exemptions are sort of commonplace, so you don't want to be on the wrong side of that line. You'll look really awful, right, especially in today's -- I mention this in the article too -- today it's all about diversity and inclusion. Are you really going to carve out religious students for sort of second-class treatment, when everybody else treats them differently -- treats them, you know, with -- with compassion.
So, no -- so, in other words, you have an administrator that tried to exercise their discretion here in whether or not to grant an exemption or not. They want to grant as few as possible, because, otherwise, why have the vaccination mandate to begin with. Right? So the policy is to vaccinate the students, but they want to still have the exemption. So, I think that creates tremendous pressure to exercise their discretion in a way that's really parsimonious and really strict. And so I don't think it's because there's animus, per se, against Catholics or Lutherans or Jews or Muslims, what have you. I don't think that's it. I think it's simply they're trying to test for sincerity, and they're being overly broad.
So, when a Catholic student says, you know, "I have an objection to this vaccine," they want an excuse to shoot them down. And they say, "Well, the pope says it's okay to take the vaccine, so you lose." Now, that same faculty might have on staff a professor who teaches all sorts of things as Catholic that are akin to Catholic teaching. So, if the university opened the hood of its own car, it would see and learn that not every person who belongs to a particular denomination necessarily believes exactly what that denomination believes. They might believe some things that are idiosyncratic. That doesn't -- that makes it no less sincere.
So, but again, I do feel for the schools that are trying to get that sincerity check. My argument is, they have to find other ways of doing it, whether it's letters of reference -- I'm not talking from a religious leader, because, as we discussed, that's problematic. But, perhaps, from, you know, three or four friends. Like, if someone applies for a permit to get a firearm. Right? You need to have some references. They have to sign off that you're not unstable, or problematic. Perhaps you could have, you know, references, people sign letters saying, "I know so and so for so long, and I'm aware that these are that person's true beliefs, yada, yada, yada -- whatever. The point is, though, you cannot use a discriminatory means. The ends don't justify the means. Right?
So, the end is, we'd want to make sure the student's sincere. They can't further that end by using means that serve to discriminate against students on the basis of the religion, which is what's going on, I fear, and I know.
Stephanie Taub: Yeah, so that -- it raises a lot of very interesting points. So, a school might push back and argue that they're asking for information about beliefs because they're trying to evaluate sincerity. And, of course, there's no right to accommodate the religious belief that someone has if they don't actually hold that belief. But, on the other hand, we haven't seen -- so we haven't seen a lot of court cases that are evaluating sincerity outside of the prison context.
In the prison, RLUIPA, context, you might have a prisoner who says that they're entitled to steak meals every dinner, or they want kosher food, because they think it's better. And so then, if you find them having a ham sandwich the day after they request their -- religious exemption, then that can evidence against their sincerity. So those are usually the contexts that you see -- that you see sincerity being an issue in First Amendment-type litigation.
But, often, in other contexts, it's usually taken for granted that they are -- that they are sincere. And there isn't a lot of, kind of, skepticism that we're seeing right now, and this kind of a presumption that you might not be telling the truth, that some of these colleges might have. So, it's kind of an interesting, novel, area that needs to be explored a little more.
Prof. Ronald J. Colombo: Oh, Stephanie, you're totally right. I mean, this is absolutely against the grain. Right? So, under constitutional jurisprudence, because of separation of church and state, the government is strictly forbidden from serving as an inquisitor. So long as a person's beliefs appear to be sincere, the government has to take it at face value and move on. The EEOC guidance, with regard to employment discrimination on the basis of religion, states that, unless there's a reason to doubt the applicant, the employee's sincerity, you kind of have to accept it at face value. Here, we seem to have flipped that around. A lot of schools seem to be saying, "Prove your sincerity, or else." And I like the EEOC's approach.
The EEOC basically said. "Unless there's a reason to doubt the sincerity, you don't." And this is where C.S. Lewis's approach, I think in The Lion, the Witch and the Wardrobe, when the students come to him and say, you know, "So and so said there's a magic forest behind the wardrobe." You know, "Tell him to stop lying." And the professor in the house says, "Well, has he lied before?" "No." "So why do you think he's lying now?" This is a cute little anecdote, and some logical reasoning going on, that our society is largely bereft of. But the point is, you assume the person's telling the truth, unless you have credible reasons to believe otherwise.
Stephanie Taub: Yeah, and it goes back to a long line of cases, where the Supreme Court has said even if they are maybe having trouble articulating, or if they have other beliefs than other people in same -- in the same religion, or the same denomination, like the Thomas v. Review Board case, that's no reason to question the sincerity. Because not every -- not every Jehovah's Witness, not every Catholic, thinks the same. And they might hold different -- different religious beliefs with regard to different issues. And so maybe a lot of administrators don't realize that -- that there isn't a one-size-fits-all, it's all here. So maybe you can give some examples of maybe good school policies, and maybe some problematic ones.
Prof. Ronald J. Colombo: Well, I do have to say, though, I think you also put your finger on something -- and it's going to be a problem in the future, more than even today -- is the illiteracy when it comes to sort of matters of religion. Newspapers, for example, and media sources, do an awful job reporting on religion. This has been well sort of documented. I think some of these school administrators who might be of a secular bent, just don't really understand and appreciate religion and its nuances. Right? And then this is why I added that fourth category, the one I called about contingent obligations. And, heaven forbid, you have a student whose religion teaches that it's up to the student to decide whether or not something violates their religion. And that blows up the heads of these administrators. I don’t think they can handle that. They don't understand. The discretionary element seems to make it a choice to them. But, it's not. Right? If you conclude that something's a sin, you no longer have a choice. Right?
In any event -- so what's a good policy? I use Syracuse University as decent policy. It just states, I mean, you know, it says religious exemption is allowed if the student submits a written, signed, and dated statement that an immunization conflicts with sincerely held religious beliefs. Now, some schools require you to flesh out the nature of the beliefs, the principles. You have to explain it, and you have to, then, tie it to the vaccination. Some schools then go so far as to suggest you have to be opposed to all immunization in order to get a vaccination exemption, which is again problematic. And, going back to the Muslim example of pork, you may -- you know, you cannot inject something with pork into your body if you believe that, as a Muslim. But, to the extent a vaccine doesn't have any implication with -- no pork gelatin, or anything, you could.
So you certainly have a sincere religious belief with regard to a pork-based vaccination, but not to one that's not pork-based. It's the same thing with the abortion link. Right? A lot of the Christian objections to every -- there are sort of two main-stream Christian objections to the Covid vaccinations, that I'm aware of. One is this sort of general bodily integrity, I'm against medicine type vaccination, which is the Christian Scientist approach. But then, the other one is the abortion link. Right? Every single Covid vaccination has been tested upon, or derived from, cells taken from an aborted human baby. That's a real problem for a lot of Christian believers, and -- but it's not a problem, let's say, with the tetanus shot. Right?
And so, to say to a Christian student, "We're only going to give you the exemption if you're opposed to all vaccines," I think some schools like to take this approach because it's nice and easy. And they need to show vaccination records. But you got vaccines before, you know, no soup for you, you lose, you're out. I don't think that's fair, right? Because I don't think you would do that to a Muslim who said, "Well, I can't take this because there's pork in it." Why should you force a Christian student to take a vaccine that's related to -- linked to abortion, just because they took one that wasn't linked to abortion?
So anyway, so you say, "What's a good policy?" Look, I mean -- and again, Stephanie, I would love your thoughts on this, whether now or another time -- religious liberty, in a pluralistic society, is messy and difficult. It just is. I mean, that's my conclusion. And this is why I think Justice Scalia in Smith was so down on it, quite frankly. But Congress reacted -- I think, appropriately -- and overturned that with RFRA. I guess what I'm saying is, if you're going to apply religious exemption, yeah, you're going to have a lot of students with idiosyncratic religious beliefs. You're going to have difficulty assessing the sincerity of those beliefs. But you can't cross the line into discriminatory means of implementing that requirement, you know -- implement -- it's tough.
Stephanie Taub: Yeah, and I mean, I think you probably get a lot agreement that if -- if a school is granting a religious exemption, they have to make sure they do it in a non-discriminatory way. And they have to be very careful that they're not accidentally just preferencing one religion over another in how they're going about this. If they're making distinctions, they have to be well-founded in their -- and narrowly tailored between -- between the religions, the different religions.
So, it looks like we've got quite a few -- quite a few questions that are piling in. Evelyn, do you have any -- are any of these particularly -- are there any that we should address first, that you see? Otherwise, I will just start going through some of the questions.
Evelyn Hildebrand: Please go ahead and dive through. There are a lot of questions.
Prof. Ronald J. Colombo: Okay, that's great. Questions are great. We'll get as many in as we can. Let me just, then, very briefly though, respond to something else you just said there, Stephanie. If you do promulgate -- at least in New York, a student is seen to be in a contractual relationship with a university. So, going back to the contract argument, if you're -- and in New York and every state that I know of, every contract has a good-faith element imbued within it. So, if a school does implement a religious exemption -- announce a religious exemption, I would say that they are legally bound to implement it in a good faith, rational way. Right? So, to the extent that they -- they announce one, but then they really don't give it to anybody, that, I would say, is a contract violation.
So, imagine a school that announces a religious exemption, and then grants it to no one. I don't think that's religious discrimination, but I think that's a contract dispute issue. Right? Because you're not announcing this in good faith. I just want throw that out there as a potential other area of exploration.
Stephanie Taub: Yeah, all right. So, I guess we'll just start taking the -- taking the questions. So, one of the questions is asking how Jacobson plays into all of this. Do we have to take into consideration the fact that in Jacobson -- it was a 1905 case in Massachusetts where they required everyone to get the smallpox vaccine or pay a $5 fine, which is about $140 today, in today's dollars, so, does the fact that it had a -- I guess, looking at the penalty -- does that come into account when you're talking about unconstitutional conditions at universities? The penalty there would be losing your tenure, or losing your -- being forced to attend a different university.
Prof. Ronald J. Colombo: That's kind of Todd Zywicki's argument in the George Mason University lawsuit. He's saying that failure to -- I think they have a -- a plan B, if you don't get vaccinated, there is some other sort of route you could take. And his point was that route would be detrimental to his career. So, so yeah, what happens when a university promulgates a mandate, but gives you the option of either get the exemption or -- this is common, I'm sorry -- take the vaccine, or subject yourself to daily testing, right? I think that's -- I think that is tenable. I think you could certainly do that. Then your question becomes, at what point does the plan B become so onerous, it's really not -- it's really not a choice, right? So, a $5 fine, a $100 fine, is probably not a big deal, but if it's a, you know, either get the exemption, or go part-time -- I mean either take the vaccine or go part-time -- that would be an issue.
I hate to say it, but that's beyond the scope of what I've written about. I'd say that's a good point, though. Right? I think the more enlightened schools, the more enlightened policies, have, though, given people reasonable choices, following the science. They've said stuff like, either get the vaccine, or subject yourself to weekly testing. Now, nobody likes weekly testing, but, if you -- if you're tested weekly, you're safe. Or, better yet, get the exemption, or take your classes online -- get the vaccine or take your classes online. We all know we can teach online now. We've been doing it for a year. So, I think the -- you asked me earlier, Stephanie, about approach -- I think those are great, better approaches, because then it's really not about exemptions, per se, it's about giving people actual choice.
Stephanie Taub: Yeah, that -- that's a great point. The next question is asking, "If schools must -- or, must schools allow a claim of exemption based on conscience objections to vaccines that could be based on religion -- say for instance, for example, stem cells that you were mentioning earlier, but, which the student doesn't explicitly assert on that basis? So, that's an interesting question. Do you have to raise it as a religious exemption, as opposed to another [inaudible 00:45:56] of exemption?
Prof. Ronald J. Colombo: Well, again, Stephanie can answer this as well as I can, but she's being a very polite moderator and letting me answer these questions. But I -- first off, the Supreme Court has been clear that conscience does not equal religion. The more enlightened schools, I think, would include a conscience objection. Right? They'd say religion or conscience, because the line between the two is close. And, again, especially for Catholics, where you have a religious obligation to follow your conscience, if it's properly formed, where is that line?
So -- but to answer your question, you do not -- unless your state has some idiosyncratic law that I'm unaware of -- 0at least in New York, you can't promulgate a religious exemption, and exclude a conscience exemption. In fact, Hofstra's policy specifically states that, you know, philosophical objections don't count. They have to be truly religious. They don't define what religious means, though. But, again, I hope I'm not being circuitous. You can promulgate an exemption that's strictly religious, and carves out conscience, and say, "Conscience objections don't count." I don't think that's good, but under the law, you're on firm ground for doing that, for excluding conscience-based objections.
Stephanie Taub: Yeah, it's interesting if you look at the -- in the K-12 situation, -- so they -- every state requires, requires certain childhood vaccines to attend K-12 schools. And so they might differ as to which, exactly, vaccines they require, but 44 of the states allow religious exemptions, and 15 allow other sorts of conscience or ethical exceptions. So it's -- it's definitely an increasing trend to allow other kinds of -- of exemptions, but it's not -- it's not universal across the state, in that context. Obviously, we're talking about Covid, and Covid vaccine in a university context. It's a different consideration, different laws would apply, but that's just interesting to throw that -- throw that out there.
All right. Let's get to some of the other questions that we have. Let's see -- so, someone's talking about personal bodily integrity with respect to unreasonable searches. And so this is raised in -- so this issue was raised in the Loyola Marymount case. I don't know if you have had a chance to -- to see that one. That one also raises state actor issues. So we have private students at a religious school -- Loyola Marymount -- that -- it's suddenly a private school, so maybe there might be some questions whether it's religion. I'm not sure. And so the court denied preliminary injunction, because it -- because it wasn't acting as a state actor, it's a private university, and they were raising constitutional claim. So, one of those constitutional claims was personal bodily integrity against unreasonable searches, which I hadn't heard before, in this context. I thought it was kind of an interesting angle, and I don't know if you have any thoughts on that. It was very far outside the scope of --
Prof. Ronald J. Colombo: Well, isn't that what Indiana is raising? The students there are raising that a little bit, too? Or, is that -- and maybe Todd Zywicki and George Mason is sort of -- those are the arguments that -- that you could use against a public university, I think, because they're constitution-based.
Stephanie Taub: Yeah, yeah, so that's definitely a problem in the Loyola one, is that it's against a private university. That's the first threshold problem. They were raising it in a Fourth Amendment context. So in the Indiana University case, and the George Mason, those are primarily Fourteenth Amendment arguments, based on substantive due process rights.
And, I guess we'll move on to -- let's see. Another, I guess another question that's kind of outside the scope was, "Are schools willing to bear the liability, or short-term--
Prof. Ronald J. Colombo: You know, again, it's outside the scope. I've seen a lot of people suggest that if a school says you must take the vaccine, you ask them to sign a waiver that says, "If I'm infertile in 20 years, you know, you have to pay for that infertility." Am I going to be banned from Twitter for even mentioning that as a possibility? I don't know. Anyway, the point -- I'm not crediting that argument -- my point is, there have been people on the internet saying that you could try to force your employer, or your school, to sign a waiver saying -- not sign a waiver, to sign the exact opposite, right -- a statement of responsibility for consequences.
I'm unaware of anyone successfully procuring a signature on that document. It sounds great. It looks great. I think it's good as sort of part of a general nasty letter strategy, but I -- why would they sign it? They'll just say "No." So, I'd love to get someone to sign it, and I would certainly ask them to sign it, but I don't see why they would, and I don't see why they would have to.
Stephanie Taub: Yeah, we've seen it the other way around, in some of the requests for medical exemptions and religious exemptions, you have to sign a waiver saying that you are aware of the risks of denying the -- or of not receiving the vaccine, and that you're not going to hold the school accountable for that. So, it's not -- the question is in the ballpark of what's going on right now.
Prof. Ronald J. Colombo: Yes, it is.
Stephanie Taub: And just not from, not from that angle.
Prof. Ronald J. Colombo: And it goes to those contract issues, right? It's all one-sided. It's one-way. It's --
Stephanie Taub: We had a force majeure play in part of the contract discussion?
Prof. Ronald J. Colombo: Yeah, again I -- as I mentioned, I'd love to unpack that one day. And, I haven't gone into it, but perhaps, yes. I mean, it seems like it could. No one's raised those arguments yet, and I'm surprised that this hasn’t been. That's another surprising thing, Stephanie -- I mentioned there's a dearth that New York case law on this narrow question of religious liberty exemptions, religious exemptions, but, just in general, these vaccination mandates at schools -- there are so many other grounds upon which they can challenge. I just haven't seen them come up. And I'm just -- I'm just, you know, surprised that the case -- and I've read the cases closely, as I imagine you have -- they've all been -- like a lot have been emergency use authorization and Fourteenth Amendment-type issues. But there are some real contract issues that could come up that no one seems to be articulating yet.
Stephanie Taub: Yeah, I wonder if, I mean, if some of the -- the reason why they haven't come up in the New York human rights law, is New York isn't exactly known as a hot-bed of religious freedom respect these days. So perhaps that would explain some of the dearth of case law in that area. But, there certainly are states that have similar laws that could -- could and should be explored more.
Prof. Ronald J. Colombo: Yeah. Yeah, and, you know, if you get yourself before a federal judge -- because you're an out-of-state student in a diversity jurisdiction, if you can pull that off -- then you get a federal judge looking at the New York state law. And, the federal judiciary, I think, has been definitely solicitous toward religion, and religious rights, and what not, broadly speaking. So, I think there's room for success there.
Stephanie Taub: And so as we are getting close to the hour, I think now might be a good time to see if we -- to step back a second, and see if you have any closing -- closing thoughts or any other points that we should, we should address before we wrap up.
Prof. Ronald J. Colombo: I mean, I just wish I -- someone would have the gumption to take one of these schools on. Because, you know how this stuff works, right? Once somebody loses somewhere, the alarm bells go off, and a lot of people then get into line. In fact, unfortunately, but, right now, the litigation's been completely the opposite direction. I think the claims have all been defeated, time and again. But this particular claim has never come up yet, and has never been raised. And I'm just looking at the policies on their face, especially the requirement of a letter from a religious leader.
There are a lot of college students in New York that don't want this vaccination, and they're all lining up to get it. I think they just, force of majority, they feel pressured. You know, they're halfway through school. They can't transfer. It's really an awful situation these students find themselves in. It might be smart to -- I would just love to see some of this stuff litigated, because I think some of the cases would break in the favor of students. But, until we have those cases, I think universities are going to remain emboldened to push the envelope this way.
Stephanie Taub: Yeah, I think you're exactly right. It's -- the time is right for cases that are challenging how these religious exemptions are applied, not just the mere existence of these religious exemptions, and make sure that students are actually respected in the process.
Prof. Ronald J. Colombo: Yes.
Stephanie Taub: And not treated with hostility, not treated with -- as second-class citizens, on the -- on the basis of their religious beliefs. So this is a really important issue. I'm sorry that we can't get to all of the good questions that we have today. A lot of them are asking questions that are -- that are a little outside the scope of the article on religious freedom exemptions, but we -- I think they raise really interesting points that would be good for another discussion.
Prof. Ronald J. Colombo: Perhaps. Thank you so very much. It's been an absolute pleasure working with you today on this, Stephanie, and the days before today. And to The Federalist Society, once again, and to the great questions. I thank the audience.
Stephanie Taub: Wonderful. Thank you so much. I'm so glad to have this discussion, and be able to -- to pick your brain and talk about this really interesting article and really interesting topic.
Prof. Ronald J. Colombo: You're most welcome.
Evelyn Hildebrand: Thanks very much. I'll just add to that thanks, the thanks of The Federalist Society. That was just a fascinating conversation. If any of our audience members have info -- have comments, please send those comments in to firstname.lastname@example.org.
Thank you all for joining today. Thank you to our audience for your good questions. Thank you to our speakers, for their expertise, and their time today. And, with all that being said, we are adjourned. Thanks very much.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.