Four Ohio universities sued by students, employees challenging schools' COVID-19 policies
More than a dozen Ohio college students and employees have filed lawsuits against their universities challenging what they say are "unreasonable" and "discriminatory" COVID-19 policies.
The plaintiffs are represented by the same Akron-based law firm and financially backed by a statewide advocacy organization that challenges vaccine mandates.
Mendenhall Law Group filed a civil lawsuit last month against Ohio University in Athens County Common Pleas Court on behalf of 16 plaintiffs seeking relief from what they say are OU's unlawful COVID-19 vaccine, masking and testing requirements.
"You can't treat someone differently based on whether they have been vaccinated or not," said Warner Mendenhall, one of the attorneys representing the plaintiffs.
Ohio University spokesman Jim Sabin said the school is looking forward to presenting its case in court.
"The University believes its actions addressing community health concerns brought on by the pandemic are necessary, scientifically supported, and legally valid," Sabin said.
The law firm filed similar lawsuits against Bowling Green, Miami and the University of Cincinnati in November and December.
What do the lawsuits say?
All four universities started requiring students, staff and faculty members to be vaccinated against COVID-19 for fall semester.
Individuals could apply for an exemption to their school's policy based on medical or religious reasons. Those with approved exemptions are still required to be regularly tested for COVID-19, and unvaccinated students without exemptions are not allowed to live on campus or attend in-person classes. However, unvaccinated students would not be unenrolled.
The lawsuits allege that those policies violate Ohio law.
Mendenhall said state law prevents universities from discriminating against individuals who choose not to receive a vaccine that has only received emergency-use authorization.
In July, Ohio Gov. Mike DeWine signed House Bill 244, which prevents public universities from requiring COVID-19 vaccines until they receive full approval from the Food and Drug Administration. The FDA approved Pfizer's COVID-19 vaccine, which is being marketed under the brand name Comirnaty, for full use in August, making the law's vaccine language moot.
Mendenhall contends Comirnaty is not available in Ohio, only the Pfizer-BioNTech vaccine, which he alleges did not get full FDA as did Comirnaty.
However, Comirnaty and the Pfizer-BioNTech vaccine are interchangeable, according to the FDA.
Sharona Hoffman, a pharmaceutical law, bioethics and employment discrimination professor at Case Western Reserve University in Cleveland, said the lawsuit's challenge is void, because Pfizer's vaccine formula didn't change after it received the FDA's full authorization in August. The only difference is its name.
"Pfizer was approved, so that's not a valid argument," Hoffman said. "Brand names change all the time."
Mendenhall said it makes no difference if there isn't a medical difference in the vaccines. There's a legal difference, he said.
The lawsuit also says the universities' health orders violate state law because their vaccine, testing and masking requirements apply to those who have not been exposed or diagnosed with COVID-19. The law bars public universities, Mendenhall said, from discriminating against individuals by requiring masking and testing for some people (if they're unvaccinated) and not others (if they're vaccinated).
"This is basically a civil rights lawsuit," he said.
In November, the Mendenhall Law Group started a partnership with Ohio Stands Up!, a 501(c)(4) advocacy group of "God-fearing, patriotic volunteers from Ohio" that works to "reclaim and defend Ohioans’ civil liberties through legal, educational, and political action," according to a press release.
What authority do universities have to make health orders?
Hoffman said it has traditionally been the responsibility of the state to promote the health and well-being of its residents, and that health orders have been one way to do that.
For instance, the 1905 Supreme Court case Jacobson vs. Massachusetts, which determined that state legislatures have the power to enforce public health policies, has long allowed governments to have that privilege. That same decision also allowed local health departments to determine when mandatory vaccines were necessary, like during a small pox epidemic.
Ohio's General Assembly, however, weakened local governing boards' power in the state to declare health orders when DeWine signed House Bill 244 in July. City and state health departments are barred from making certain health orders, Hoffman said, which must now come from the legislature.
Public schools and universities were also limited by the new law, but Hoffman said schools have an expectation to protect the health and safety of its students. Hoffman said schools have had legal protections at the state and federal level in the past to require things like uniforms, homework and other vaccines.
"Is any requirement of a school considered discriminatory? No," she said.
Hoffman said we are "certainly seeing a flurry" of lawsuits challenging these vaccine mandates.
"This is not trivial; this is about saving lives," she said. "This disease has taken well over 800,000 lives. Requiring vaccines, masks and frequent testing us such a minimal ask to save human life."
Court dates for the suits filed against Ohio University and Bowling Green State University have yet to be scheduled. A Hamilton County Common Pleas court will hear the University of Cincinnati's case in March.
On Dec. 6, the Butler County Common Pleas Court dismissed the lawsuit challenging Miami University's vaccine requirement. The case is currently being appealed.
"We’re confident in our vaccine policy, which requires all students, faculty, and staff members to be vaccinated against COVID-19 unless exempted," said Miami University spokeswoman Jessica Stark Rivinius. "Like the Centers for Disease Control and Prevention (CDC), the World Health Organization, and numerous public health officials, we believe that vaccination against COVID-19 is key to ensuring the health and safety of our campus community."
As part of its partnership with the Mendenhall Law Group, Ohio Stands Up! is helping to triage prospective cases and paying plaintiff's legal fees.
"Because plaintiffs will incur legal costs, Ohio Stands Up! would like to buffer some of the financial hardship when possible," the press release said.
Mendenhall's firm is currently involved in several other COVID-19-related lawsuits, including one against the J.M. Smucker Company's vaccine mandate and another against Wright State University and Kettering Hospital.
Sheridan Hendrix is a higher education reporter at the Columbus Dispatch. You can reach her at email@example.com. You can follow her on Twitter at @sheridan120.