Colleges backtrack as COVID vaccine mandate lawsuits proceed under SCOTUS mootness doctrine

Rutgers, The State University of New Jersey, told its campuses this month to fuggedaboudit when it comes to COVID-19 vaccine mandates.

It's not clear the taxpayer-funded institution, which tested the jabs for reduction of symptoms but not transmission in clinical trials for Pfizer, Moderna and Johnson & Johnson, can forget about legal consequences, however.

A lawsuit by independent presidential candidate Robert F. Kennedy Jr.'s Children's Health Defense seems destined for the Supreme Court to determine whether Rutgers "suspending" the mandate, as an April 1 systemwide email announced, is enough to end the litigation.

The University of California Los Angeles didn't fare so well when it tried to end a class-action suit against its former mandate by fired employees, with a Superior Court judge ruling in January that some parts of the case could proceed to legal discovery.

Finland's government may be in trouble as well, with an adviser and World Health Organization vaccine expert reportedly undermining its posture in a lawsuit against Finland's onetime "CovidPass" by citizen Mika Vauhkalaafter after a cafe denied him entry for not having the passport.

According to journalist Ike Novikoff, reporting outside Helsinki District Court on Thursday, senior physician Hanna Nohynek testified that her Finnish Institute for Health and Welfare, part of the Ministry of Social Affairs and Health, knew by summer 2021 "and possibly earlier" the vaccines weren't stopping transmission or infection.

Nohynek, who chairs the WHO's Strategic Advisory Group of Experts on Immunization, said the Finnish government ignored the institute's insistence in late 2021 that there was "no basis to continue" enforcing CovidPass, which gives Finns a "false feeling of security," Novikoff reported.

British cardiologist Aseem Malhotra, a target of social media censorship after his reversal on COVID vaccines, testified in the suit Friday. Former Senate Finance Committee investigator Paul Thacker spotted the expert appearances and explained Nohynek's credentials.

RFK Jr.'s group said it was already planning a SCOTUS petition after the 3rd U.S. Circuit Court of Appeals sided with Rutgers against vaccine-resisting students two months ago. While concurring, one judge nevertheless questioned the "wisdom" of the policy, since Rutgers didn't mandate vaccination for faculty until later and refused to let a graduating student finish remotely.

Rutgers was one of the last public universities to retain a mandate this calendar year, according to regular tracking of college immunization requirements by the anti-mandate group No College Mandates. Nearly 500 schools, public and private, have ended their onetime mandates. 

Only 35 remain as of April 4, NCM said, with four California State University campuses and Michigan's Wayne State the only apparent public institutions left. Since Jan. 1, about as many dropped or said mandates would sunset at the end of the school year.

Roughly 100 schools still had mandates when the CDC stopped recommending preferential treatment for vaccinated people in August 2022, according to an archive of NCM's college mandate tracker. A year earlier that month, the agency estimated 87% of Americans already had COVID antibodies, casting further doubt on the purpose of mandates.

The April 1 email to the Rutgers community said it has "relied on science" since March 2020, thanking the community for its "unfailing" cooperation that "led to a successful effort in keeping our community safe."

Without elaborating on the timing or what science had changed, Executive Vice President Antonio Calcaldo said the university system "effective immediately" was halting COVID vaccine mandate policies for students, employees, affiliates such as healthcare contractors and "covered individuals" such as clinical students and faculty.

Julio Gomez, lead attorney for Children's Health Defense, told its in-house publication The Defender that he assumed Rutgers would argue in court that suspending the policy would moot further appeals. It won't stop CHD from asking SCOTUS to find that "Rutgers never had the power to do what it did," he said.

SCOTUS has warned government defendants in recent years that they face a high bar to moot by ending a policy after getting sued.

It ruled 8-1 for a censored student evangelist that non-economic damages are enough to sustain a First Amendment lawsuit when his college tried to moot the case by ending the policy mid-litigation. Georgia Gwinnett College later paid Chike Uzuegbunam $800,000 to settle.

The following year SCOTUS ruled the Environmental Protection Agency couldn't moot Republican-led states' challenge to the Obama administration's Clean Power Plan, which never took effect, because the Biden administration didn't promise it wouldn't reinstate the rules.

NCM founder Lucia Sinatra told The Defender the Rutgers change took her anti-mandate group by surprise, since she communicated regularly with the university and "we just kept hearing, ‘This COVID-19 mandate is never going to go away.'" 

Sinatra emphasized the importance of Rutgers ending the mandate for clinical settings, unlike Johns Hopkins University, which still has a mandate for medical students and employees. 

Rutgers didn't answer Just the News queries to explain the timing of the change or how the science had changed. CHD didn't answer when it will file the SCOTUS petition or lay out its argument.

The UCLA class-action lawsuit is led by anesthesiologist Christopher Rake, the subject of a College Fix profile soon after he recorded himself being escorted out of his facility by security in October 2021 for remaining unvaccinated.

He organized an anti-mandate group at UCLA called Citizens United for Freedom and rejected UCLA's offer to seek a religious exemption. Rake said he doesn't trust COVID vaccines because "you can never get rid of" coronaviruses, which are "constantly mutating," and vaccines against them "cause antibody dependent enhancement.”

The university faced setbacks in the Jan. 31 ruling by Alameda County Judge Tara Desautels on UCLA's demurrer – where a defendant doesn't challenge the factual claims but argues "so what?" – and motion to strike certain requests for relief. Former California elected official Thomas Buckley profiled the plaintiffs this month.

She overruled UCLA's objection that by "articulat[ing] its justification" for the mandate, it had shown its "countervailing interest outweighs any minimal intrusion" on the employees' right to privacy.

Desautels agreed the plaintiffs sufficiently alleged coercion, by specifying "physical conduct on specific dates and identif[ying] the individuals involved by name," and retaliation, by saying they suffered "adverse employment actions" after objecting to "colleagues," "officials" and “hospital administration."

The judge scolded the university for not explaining how the California Constitution, which provides greater protections for expression than the First Amendment, didn't protect a plaintiff who alleged he was fired after speaking "at a rally opposed to mandatory injections."

UCLA's decision to "update the Vaccine Policy to allow an opt-out program for student[s] and employees" is not enough to strike the plaintiffs' request for declaratory relief as moot because "the policy remains in place," Desautels wrote. "Nothing prevents Defendant from further modifying the policy."

Alarmingly for UCLA, the judge said it hadn't established there was no "reasonable possibility" that a class could be formed.

The docket shows the plaintiffs filed a third amended complaint in response to Desautels' ruling on their own deficiencies in pleading, UCLA filed another demurrer and motion to strike, and the court will hold a hearing on them May 23.