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Thou Shalt Not Force the Shot: The First Jab Against Student-Athlete Vaccine Mandates and Discretionary Religious-Exemption Systems

photo of woman with bare arm shown being given vaccine shot by gloved hands

Photo Source: VCU Capital News Service, Vaccine, Flickr (Feb. 28, 2012) (CC BY-NC 2.0).


By: Nicolas Burnosky*                                        Posted 11/18/2021                                

The global COVID-19 pandemic has brought with it concomitant restrictions on rights previously taken for granted and exercised freely, such as going where one wishes to go.[1]  However, a torrent has been brewing for quite some time following the imposition of vaccine mandates.[2]

Strong proponents of religious rights have become increasingly more outspoken regarding religious exemptions, as is typically seen in many other federal and state governmental regulatory schemes.[3]  The general theory in cases involving governmental regulation is as follows: one cannot be forced to undertake medical treatment, such as vaccination, pursuant to legislative policies that substantially burden one’s sincerely held religious beliefs and that are not narrowly tailored to further a compelling interest.  Such a theory mirrors application of strict scrutiny review and analysis under the Religious Freedom Restoration Act.[4]

Student-Athletes Allege Vaccine Mandates Violate Free Exercise Rights

In one of the latest iterations of religious exemption requests, student-athletes at Western Michigan University have taken the reins.  On August 30, 2021, several student-athletes alleged that the university’s requirement that they must receive the COVID-19 vaccine in order to continue participating in sports “seeks to override Plaintiff’s sincerely held religious beliefs and viewpoint and discriminates against them on the basis of their religion.”[5]  Plaintiffs alleged violations of the First and Fourteenth Amendments and federal and state law.[6]

Plaintiffs have achieved substantial success.[7]  The district court first granted Plaintiffs’ motion for a temporary restraining order pending a preliminary injunction hearing.[8]  Then, the court granted Plaintiffs injunctive relief and preliminarily enjoined Defendants from enforcing their vaccine policy against Plaintiffs.[9]  The court ruled that “Defendant’s denial of Plaintiffs’ requests for religious exemptions functions to coerce the Plaintiffs to act in a manner that violates their sincerely held religious beliefs.”[10]  However, the court also held that Defendants may require Plaintiffs to undergo other COVID-19 preventive measures.[11]  Later, the district court also denied Defendants’ motion to stay the preliminary injunction until full adjudication on the merits.  Defendants appealed.[12]

The University’s Mandate Coerced Student-Athletes to Violate Religious Beliefs

On October 7, 2021, the Sixth Circuit rendered its decision affirming the district court’s preliminary injunction.[13]  Noting that the decision was “a close call,” the panel found that “because the free exercise challenge will likely succeed on appeal, the factors considered in granting a stay favor the student-athletes.”[14]

The Sixth Circuit panel assessed the strength of Plaintiffs’ constitutional claims, finding that the Supreme Court’s recent decisions in Trinity Lutheran[15] and Fulton[16] provided meaningful guidance.[17]  As the Sixth Circuit succinctly put it, “[b]y conditioning the privilege of playing sports on plaintiffs’ willingness to abandon their sincere religious beliefs, the University burdened their free exercise rights.”[18]  The panel stated that “Plaintiffs’ unique ability to play sports helps frame our analysis with respect to the ‘coercion or penalt[y]’ aspect of a free exercise claim.”[19]  Because Defendants hinged Plaintiffs’ privilege of participation in intercollegiate sports on violating their religious beliefs, the court found “that the University’s vaccination policy for student-athletes burdens [plaintiffs’] free exercise of religion.”[20]

The University’s Mandate Was Not Generally Applicable

The court noted, however, that this finding did not end their analysis.[21]  If the policy is neutral and generally applicable, the government need only satisfy rational basis review.[22]  Rational basis review asks whether the law or regulation is rationally related to a legitimate governmental interest.[23]  A law is not neutral “[i]f the object of a law is to infringe upon or restrict practices because of their religious motivation.”[24]  A law is not generally applicable if the “government, in pursuit of legitimate interests, in a selective manner impose[s] burdens only on conduct motivated by religious belief.”[25]  Fulton elaborated on general applicability, holding that a system that “provides a ‘mechanism for individualized exemptions’ is not generally applicable.”[26]

The Sixth Circuit held that the University’s policy was not generally applicable because it provided for individualized religious exemptions and retained discretion to grant them.[27]  Accordingly, “the University must prove that its decision not to grant religious exemptions to plaintiffs survives strict scrutiny.”[28]

Not Good Enough: The University’s Unsuccessful Objections

Before assessing the University’s policy through the lens of strict scrutiny, the Sixth Circuit responded to and rejected three of the University’s objections.[29]  Defendant’s objections were that 1) its policy was neutral and generally applicable because the “University refused to allow any unvaccinated player to participate in college sports,” 2) the University granted every religious exemption request to each student and allowed each student to retain their athletic scholarships, 3) the policy “forbids all unvaccinated student-athletes from participating in sports but allows those with medical or religious objections to retain their scholarships and avoid dismissal and discipline.”[30]

Addressing each in turn, the Sixth Circuit panel noted that, regardless of whether exemptions were granted, the policy’s facial establishment of a system of individualized exemptions is enough to “render[] the policy not generally applicable.”[31]  Next, the Sixth Circuit noted how the record contradicts the University’s contentions that it granted every exemption.[32]  To the contrary, the University itself “stated, in writing, that it had ‘denied’ [all but two students’] exemptions.”[33]  Relatedly, the exemptions granted by the University did not permit full participation in athletic programs[34]; it only permitted plaintiffs to be “listed as a player on the team website.”[35]

The University’s Vaccine Mandate Did Not Survive Strict Scrutiny

Finally, the Court upheld the district court’s finding that the University’s self-described policy was not the same as the policy it had sent out.  Specifically, the University’s policy provided that either a) those students who were fully vaccinated against COVID-19, or b) those students who have received a religious or medical exemption were able “to maintain full involvement in the athletic department.”[36]  The University rebutted, contending its “policy forbids all unvaccinated student-athletes from participating in sports but allowing [exempted students] to retain their scholarships and avoid dismissal and discipline.”[37]  However, not seeing any such language in the actual policy as disseminated, the Sixth Circuit “thus [saw] no error—much less clear error—in the district court’s finding that ‘[t]he policy Defendants describe[] is not the policy Defendants sent to their student athletes.’”[38]

Accordingly, the panel concluded strict scrutiny was the appropriate standard of review.  Under strict scrutiny, the University must show that its policy “serves ‘interests of the highest order’ and is narrowly tailored to achieve those interests.”[39]  While agreeing that the University’s interests were compelling, the Sixth Circuit held that the University failed to show that its policy was narrowly tailored.[40]  Specifically, the panel noted that the chance of an unvaccinated student-athlete contracting or spreading COVID-19 to or from a student-athlete with a religious exemption is at least as likely as the chance that a vaccinated student-athlete may contract or spread COVID-19 to or from an unvaccinated non-athlete student.[41]  The court also noted that other universities grant exemptions to their COVID-19 mandates.[42]  Therefore, the court held that the University had not survived strict scrutiny and denied the University’s motion to stay the district court’s proceedings and preliminary injunction.[43]  The case came to a recent conclusion upon the entry of a consent decree barring Plaintiffs’ claims and permanently enjoining Defendant from excluding Plaintiffs from full participation solely on vaccination status.[44]

As I Walk Through the Valley of the Shadow of . . . Uncertainty? What Lies Ahead?

While the Sixth Circuit did not deny the University’s authority to take meaningful measures to alleviate the spread of COVID-19 through other measures such as non-discretionary exemptions, the court certainly delivered a victory and some measure of relief to those whose sincerely held religious beliefs militate against vaccine mandates.  Where will courts go from here?  Will legal challenges arise more frequently?  Will there be a circuit split and the potential for the Supreme Court to grant certiorari to resolve the viability of religious exemptions to state-imposed vaccine mandates?

*Managing Editor of Student Works, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2022, Villanova University Charles Widger School of Law.


[1] See U.S. Const. amend. XIV, § 1, cl. 2 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law”); Obergefell v. Hodges, 576 U.S. 644, 663 (2015) (“[T]hese liberties [protected by Due Process Clause] extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”).

[2] See Colleen Long & Andrew Demillo, As COVID-19 Vaccine Mandates Rise, Religious Exemptions Grow, AP News (Sept. 15, 2021), (discussing increasing requests of religious exemptions in light of vaccine mandates instituted at various levels of government, private sector).

[3] See Fawn Johnson & Cheryl Saenz, Religious Exemptions Stand in Path of Mask, Vaccine Mandates, Bloomberg Law (July 29, 2021), (detailing recent lawsuits objecting to mask and vaccine mandates on religious liberty grounds).

[4] See Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 546 (1993) (internal citation omitted) (quoting McDaniel v. Paty, 435 U.S. 618, 628 (1978)) (“To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.”); 42 U.S.C.S. § 2000bb-1(b) (LEXIS through PL 117-52, approved 10/31/21) (“Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”).

[5] Amended Complaint at 2, Dahl v. Bd. of Trs. of W. Mich. Univ., No. 21-757 (W.D. Mich. Sept. 3, 2021), ECF No. 15 (alleging university engaged in impermissible religious discrimination of Plaintiffs’ religious beliefs); see also id. at 6-8 (naming Board of Trustees, university’s president, athletic director, and associate director of institutional equity as defendants).

[6] See id. at 12-18 (alleging various violations of federal and state law).  Section 1983 provides that individuals or entities acting under color of state law may be held liable for violations of constitutional rights.  See 42 U.S.C.S. § 1983 (LEXIS through PL 117-52, approved 10/31/21) (“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”).  Id.  Section 2000a requires that places of public accommodations provide “full and equal enjoyment” of its “goods, services, facilities, privileges, advantages, and accommodations . . . without discrimination or segregation on the ground of . . . religion.”  Id. § 2000a(a).  The provision also applies to “officials of the State or political subdivision thereof.”  Id. § 2000a(d)(2).

[7] For further discussion of plaintiffs’ legal success, see infra notes 8-14 and accompanying text.

[8] Dahl v. Bd. of Trs. of W. Mich. Univ., 2021 U.S. Dist. LEXIS 167041, at *2 (W.D. Mich. Aug. 31, 2021) (granting Plaintiffs’s request for temporary restraining order pending preliminary injunction hearing).  This temporary restraining order was amended to accommodate a stipulation by the parties that Plaintiff may file an Amended Complaint.  See Dahl, No. 21-757 (W.D. Mich. Sept. 3, 2021), ECF No. 20 (approving Amended Complaint and extending temporary restraining order to other recently added Plaintiffs).

[9] See Opinion and Order Granting a Preliminary Injunction at 12, Dahl, No. 21-757 (W.D. Mich. Sept. 13, 2021), ECF No. 25, (“Having found a likelihood of success on the merits of [Plaintiffs’] constitutional claim, the Court need not consider the remaining three factors for a preliminary injunction.”); see also id. at 4 (describing four factors courts consider when ruling on motion for preliminary injunction, but noting that likelihood of success of constitutional claim is often dispositive).

[10] See id. at 12 (holding Plaintiffs’ had shown likelihood of success on merits of constitutional claim).

[11] See id. at 13 (“So long as Plaintiffs have not received a COVID-19 vaccination, Defendants may require Plaintiffs to submit to COVID-19 testing weekly or more frequently and may also require Plaintiffs to wear face coverings during team activities.”).

[12] See Appellants’ Emergency Motion to Stay Injunction Pending Appeal and to Stay Proceedings at 1, Dahl v. Bd. of Trustees of W. Mich. U., No. 21-2954 (6th Cir. Sept. 27, 2021), ECF No. 10-1, (filing emergency motion to stay injunction pending appeal and to stay proceedings until litigation is complete in district court).

[13] Dahl v. Bd. of Trs. of Western Mich. U., 2021 U.S. App. LEXIS 30153, at *18 (6th Cir. Oct. 7, 2021) (“[T]he motion for a stay of the preliminary injunction and the district court's proceedings pending appeal is DENIED.”) (emphasis in original)).

[14] See id. at *1-2 (declining to issue stay on district court’s preliminary injunction because of plaintiffs’ likelihood of success on appeal).

[15] Trinity Lutheran Ch. of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017).

[16] Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021).

[17] See Dahl, 2021 U.S. App. LEXIS 30153, at *5 (“Accordingly, a policy that forces a person to choose between observing her religious beliefs and receiving a generally available government benefit for which she is otherwise qualified burdens her free exercise rights.” (citing Fulton, 141 S. Ct. at 1876; Trinity Lutheran, 137 S. Ct. at 2023))).

[18] Id. at *6-7 (noting Defendants forced Plaintiffs to choose either between participating in sports or receiving medical treatment they believe violates their sincerely held religious beliefs).

[19] Id. at *7-8 (opining that only those student-athletes otherwise eligible to participate in intercollegiate sports were burdened by vaccination policy and focusing on policy’s effect on student-athletes).

[20] Id. at *8 (concluding vaccination policy constituted burden on Plaintiffs’ free exercise rights).

[21] Id. at *8-9 (“Of course, not every burden on the free exercise of religion is unconstitutional.”).

[22] See, e.g., Klaasen v. Trs. of Ind. Univ., 2021 U.S. Dist. LEXIS 133300, at *124-25 (N.D. Ind. July 8, 2021), aff’d 7 F.4th 592 (7th Cir. 2021) (finding university’s vaccine mandate with non-discretionary religious exemptions neutral, generally applicable, while holding policy survived rational basis review).

[23] See FCC v. Beach Comms., 508 U.S. 307, 313 (1993) (finding government satisfies rational basis review “if there is any reasonably conceivable set of facts that could provide a rational basis” for challenged law).  For further reading on how rational basis review weighs far too heavily in the government’s favor, see Clark Neily, No Such Thing: Litigating Under the Rational Basis Test, 1 N.Y.U. J.L. & Liberty 897, 897 (2005) (“[T]he rational basis test is nothing more than a Magic Eight Ball that randomly generates different answers to key constitutional question depending on who happens to be shaking it and with what level of vigor.”).

[24] Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993) (holding city ordinance that clearly targeted religious beliefs of small religious group was not neutral).

[25] Id. at 543 (holding ordinance was not generally applicable since it only regulated religiously-motivated conduct, thus left similar secularly-motivated conduct uninhibited).

[26] See Dahl, 2021 U.S. App. LEXIS 30153, at *9 (quoting Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1877 (2021)) (noting neutral, generally applicable laws are not subject to strict scrutiny).

[27] See id. at *10 (“And like the city in Fulton . . . , the University retains discretion to extend exemptions in whole or in part” because policy stated that religious exemptions would be “considered on an individual basis.”).

[28] See id. (citing Fulton, 141 S. Ct. at 1881) (finding that discretion contained within policy was dispositive on issue of general applicability).

[29] See id. at *10-14 (critiquing, ultimately rejecting University’s objections).

[30] Id. at *11-14 (emphasis added) (outlining University’s primary arguments that its policy was neutral, generally applicable).

[31] Id. at *11; see also Fulton, 141 S. Ct. at 1879 (“[The] creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless of whether any exceptions have been given.”).

[32] See Dahl, 2021 U.S. App. LEXIS 30153, at *11-12 (stating University’s statements that it had granted every exemption was not reflected in record).

[33] Id. at *12 (“Based on the University’s own documentation, the district court’s factual finding that plaintiffs did not receive exemptions does not strike us as erroneous, let alone clearly so.”).

[34] See id. (“After all, the purported exception plaintiffs received did not allow them to play college sports.”).

[35] See id. at *13 (finding district court had not clearly erred in concluding University’s allowance of exempted players to remain listed as players on team websites constituted denial of “plaintiffs’ requests for exemptions in substance as well as form”).

[36] See id. at *2 (reciting policy that reads to permit full participation by vaccinated or exempted students).

[37] See id. at *13 (suggesting University always viewed its policy as not granting full participation to exempted students).

[38] See id. at *13-14 (quoting Opinion and Order Granting a Preliminary Injunction at 7-8, Dahl v. Bd. of Trs. of W. Mich. Univ., No. 21-757 (W.D. Mich. Sept. 13, 2021), ECF No. 25, (noting University’s contention was not found in original official policy).

[39] Id. at *14 (quoting Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1881 (2021) (citation omitted)) (stating applicable standard of review).

[40] See id. (“The University’s interest in fighting COVID-19 is compelling. . . .  But the University falters on the narrow tailoring prong.” (citing Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam))).

[41] See id. at *14-15 (“[P]ublic health measures are not narrowly tailored if they allow similar conduct that ‘create[s] a more serious health risk.’” (quoting Cuomo, 141 S. Ct. at 67).

[42] See id. at *15 (“[N]arrow tailoring is unlikely if the University’s conduct is ‘more severe’ than that of other institutions.” (quoting Brach v. Newsom, 7 F.4th 904, 931 (9th Cir. 2021))).

[43] See id. at *17-18 (“But having announced a system under which student-athletes can seek individualized exemptions, the University must explain why it chose not to grant any to plaintiffs.  And it did not fairly do so here.”).

[44] See Consent Judgment at 3-4, Dahl, No. 21-757 (W.D. Mich. Nov. 16, 2021), ECF No. 46, (“The Plaintiffs and Defendant agree and stipulate that the . . . preliminary injunction . . . shall be incorporated into this Consent Judgment as a permanent injunction.”).