Federal Court Strikes Down Colorado University’s ‘Unconstitutional’ COVID Vaccine Mandate

A federal court this month struck down the University of Colorado Anschutz School of Medicine’s COVID-19 vaccine mandate as unconstitutional.

Originally published by The Defender on May 20, 2024

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A federal court this month struck down the University of Colorado Anschutz School of Medicine’s COVID-19 vaccine mandate as unconstitutional. The ruling could affect similar cases, including a Children’s Health Defense (CHD) lawsuit against Rutgers University over its vaccine mandate.

In a 55-page ruling issued May 7, the U.S. Court of Appeals for the 10th Circuit found that Anschutz’s vaccine mandate demonstrated “religious animus” — in violation of the First Amendment’s Establishment and Free Exercise clauses.

Anschutz enacted the mandate on Sept. 1, 2021, and amended it later that month. The 10th Circuit ruled that both versions were unconstitutional.

The mandate recognized religious exceptions but required applicants to overcome a series of hurdles, which the plaintiffs argued were unevenly applied.

In September 2021, the Thomas More Society sued Anschutz on behalf of 17 students and employees whose requests for religious exemptions were denied and who faced personal, academic and professional repercussions as a result. They argued the exemption policy was discriminatory.

The lawsuit named officials at the Anschutz School of Medicine and the University of Colorado’s Board of Regents as defendants.

The U.S. District Court for the District of Colorado had twice previously ruled against the plaintiffs — on Oct. 25, 2021, and on Jan. 27, 2022 — denying their request for a preliminary injunction and finding that the lawsuit was unlikely to succeed.

The 10th Circuit overturned the denials in its May 7 ruling.

In a press release, Peter Breen, executive vice president and head of litigation at the Thomas More Society, called the ruling a “strong court decision in favor of religious liberty” which “reaffirms and strengthens our bedrock First Amendment protections.”

He added:

“The University of Colorado ran roughshod overstaff and students of faith during COVID, and the Court of Appeals has now declared plainly what we’ve fought to establish for almost three years: the University acted with ‘religious animus’ and flagrantly violated the fundamental religious liberties of these brave healthcare providers and students.

“With this ruling in favor of our clients, the Court of Appeals has made clear that people of faith are not second-class citizens — they are deserving of full respect and the protection of the United States Constitution in their free exercise of religion.”

Lucia Sinatra, co-founder of No College Mandates, welcomed the ruling but said it “is more narrow than people realize.” She told The Defender:

“As I read the decision, the appeals court basically determined that colleges cannot grant certain religious exemptions and deny other religious exemptions as this is religious discrimination.

“However, if a college granted no religious or medical exemptions of any kind to any community members, they did not rule on whether this is unconstitutional or not.”

Ruling may impact other legal challenges to university vaccine mandates

The 10th Circuit’s decisions may have wide-ranging implications — including in CHD’s lawsuit challenging Rutgers University’s vaccine mandate.

CHD and 18 students sued Rutgers on Aug. 16, 2021, after Rutgers became the first university in the U.S. to require COVID-19 vaccination as a condition of attendance.

On Sept. 27, 2021, U.S. District Judge Zahid N. Quraishi denied CHD’s efforts to obtain a temporary restraining order against the university. The case was dismissed in October 2022, prompting CHD and 13 of the students to appeal the decision.

Last week, CHD asked the U.S. Supreme Court to hear its case against Rutgers.

CHD General Counsel Kim Mack Rosenberg told The Defender “The 10th Circuit ruling in the University of Colorado case is based on different facts than the Rutgers case. The Colorado case focuses on the University’s animus toward religion in its COVID-19 policies. Religious discrimination is not at issue in the Rutgers case.”

She added:

“However, the University of Colorado case is important because it applied strict scrutiny — the standard we argued also is applicable in the Rutgers case. In both cases, plaintiffs argue that fundamental rights are at stake, which requires a more intensive examination of government policies and holds them to a higher standard to survive that examination by the court.

“The 10th Circuit applied strict scrutiny and found that the University’s policies could not stand. We argue in Rutgers that the courts wrongly applied a more lax standard and that had they correctly applied strict scrutiny, Rutgers’ actions too should not survive.”

Sinatra said the Colorado ruling

“can certainly get many colleges in trouble if they selectively denied religious exemptions, and I believe many colleges selectively denied some religious exemptions and granted other religious exemptions.”

“Now we need the students to come forward and pursue these claims and hold these colleges accountable for religious discrimination,” Sinatra said.

Policy discriminated ‘in favor of some religions and against others’

According to The Epoch Times, the University of Colorado Anschutz School of Medicine initially granted religious exemptions “to anyone who checked a box.”

But the Sept. 1, 2021, policy significantly limited the criteria for religious exemptions, recognizing only “religious exemptions based on religious beliefs whose teachings are opposed to all immunizations.”

Exemptions would also only be granted to those who had not previously received any vaccinations. Conversely, medical exemptions would be granted to anyone who could provide a doctor’s statement certifying that their health or life would be endangered if they received a COVID-19 vaccine.

In his January 2022 ruling, U.S. District Judge Raymond Moore found that the plaintiffs did not demonstrate they would suffer irreparable harm or that Anschutz’s updated mandate was not neutrally applied. Moore also found that the plaintiffs’ original lawsuit was moot because the university updated its policy.

But according to the 10th Circuit, the policy was “explicitly non-neutral,” as the U.S. Constitution does not allow the government — in this case, a public university — to “discriminate in favor of some religions and against others.”

According to the 10th Circuit, Anschutz “has not even attempted to explain why its interest” in preventing the spread of COVID-19 “is served by granting exemptions to practitioners of some religions, but not others.”

The 10th Circuit found that the Sept. 24, 2021, version of the mandate was “a mere pretext to continue the Administration’s September 1 policy” and that it maintained the uneven criteria for granting a medical exemption compared to a religious exemption.

According to the 10th Circuit, the university’s “intrusive inquiry” into the applicant’s religious beliefs is “flatly barred” by the First Amendment’s Establishment Clause, which prohibits government actions from unduly favoring one religion over another.

In his concurring opinion, Ebel agreed that the Sept. 1, 2021, mandate likely violated the First Amendment, but found that the updated Sept. 24, 2021, version was “neutral toward religion and generally applicable.”

Students, employees ‘coerced’ as a result of the religious exemption policy

The 10th Circuit’s majority ruling also noted that the initial mandate had real-world repercussions, as it was used to fire two of the plaintiffs, both university employees.

According to the plaintiffs’ March 2022 opening brief, they faced a range of threats and repercussions due to their stance regarding vaccination.

One plaintiff, a university employee, was put on paid leave after the filing of the initial lawsuit and was terminated on Jan. 31, 2022, after the district court’s denial.

Other plaintiffs were placed on unpaid leave, had their pay reduced, were “allowed to work fully remote” but were subject to termination “at any moment” or were encouraged “under duress” to submit a letter of resignation in lieu of termination.

According to the brief, students who requested a religious exemption were given an ultimatum, obliging them to choose between getting the vaccine, taking a one-year leave of absence or withdrawing. One of the students ultimately “succumbed to COVID vaccination under duress” due to this ultimatum.

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Michael Nevradakis, Ph.D.

Michael Nevradakis, Ph.D., based in Athens, Greece, is a senior reporter for The Defender and part of the rotation of hosts for CHD.TV's "Good Morning CHD."