Rational basis or strict scrutiny; a tale of two university vaccine policies


On August 31, 2021, Judge John Maloney of the U.S. District Court for the Western District of Michigan issued two separate opinions on motions for temporary restraining orders requesting prohibitions against university enforcement of COVID-19 vaccine mandates. The judge allowed one university's policy to remain in effect, but prohibited the other university from enforcing its policy. Lessons from the decisions may assist universities and other employers in developing enforceable COVID-19 vaccination policies.

Michigan State employee case

The plaintiff in Jeanna Norris v Michigan State University is a university employee. The employee was subject to a vaccination policy requiring all university employees to be vaccinated by August 31, 2021. The employee argued that she should be exempt from the policy because she previously had COVID-19 and she has a note from her physician stating that it is unnecessary for her to be vaccinated because she has natural immunity. Despite the note, the university did not exempt the employee from the policy.

In the underlying case, the employee asserted that Michigan State University's vaccination mandate infringed on her constitutional right to privacy, that she had a property interest in her job with the university and that she was required the opportunity to refuse the vaccination based on the vaccine's Emergency Use Authorization (EUA) statute. The court looked to a 1905 U.S. Supreme Court case, Jacobson v. Massachusetts, 197 U.S. 11 (1905), and a July 2021 Indiana U.S. District Court Case, Klaassen v. Trs. of Indiana, to apply a rational basis standard (rather than the narrower strict scrutiny standard). The court refused to block the university's policy, acknowledging that that the 14th amendment permits universities to require vaccination to protect the public health of students, faculty and staff. The court also found that there was a presumption under Michigan law that the employee was at will and, therefore, she did not have a property interest in her job. Finally, the court found that the issue of EUA vaccine refusal was moot due to the fact that at least one vaccine had been granted full FDA approval by the time court issued its opinion.

Western Michigan students case

Plaintiffs in Emily Dahl v Western Michigan University are student members of the Western Michigan University women's soccer team. The students were subject to a vaccination policy requiring varsity athletes to be vaccinated by August 31, 2021. All of the students requested exemptions from the policy on the basis of their religious beliefs. All exemptions were denied on the basis that "prohibiting unvaccinated members of the team from engaging in practices and competition is the only effective manner of accomplishing this compelling interest.”

In the underlying case, the students alleged that the university's denial of their requests for religious exemptions violate their free exercise of religion. The court acknowledged that the vaccine mandate would be subject to a rational basis review, however, the university's denial of the religious exemptions are subject to strict scrutiny review. Accordingly, the university would have to prove that enforcing its vaccination requirement over the objections that it violated the students' free exercise of religion was justified by a compelling government interest and is narrowly tailored. Without the benefit of briefing from the university, the court acknowledged that the university may have a compelling interest in reducing the potential harm that unvaccinated players pose to the health of vaccinated players. The court, however, found that a full denial of the exemption, without providing other options for enhanced testing and masking—similar to the requirements for the general university population—is not narrowly tailored. The court granted a temporary restraining order prohibiting enforcement of the policy, however, the court allowed the university to set enhanced testing and masking protocols for unvaccinated students.


Globally applicable policies have a greater chance of withstanding challenge. Consistency in health and safety policy application across the entire university provides the most compelling and rational argument for requiring vaccines. Inconsistencies in policies open you to allegations of irrationality.

Denials of religious exemptions invite strict scrutiny – if you are denying a religious exemption, you will be required to define your compelling interest and prove the policy is narrowly tailored so as not to impact free exercise of religion. Blanket denials without a case-by-case analysis is not likely to meet the narrowly tailored standard. Before denying religious exemptions, consider other exemptions you made and other advanced protective measures you could put in place.

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