Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—9th Cir.: Due process, equal protection challenges to LA school district’s rescinded COVID-19 policy fail, (Aug 1, 2025)

By Kathleen Kapusta, J.D.

The district’s policy, said the en banc court, easily survived such review because “it was more than reasonable for the LAUSD to conclude that COVID-19 vaccines would protect the health and safety of its employees and students.”

After finding that this case challenging the Los Angeles Unified School District’s (LAUSD) COVID-19 vaccination policy was not moot even though LAUSD had rescinded the policy during the litigation, a divided en banc Ninth Circuit, joining all its sister circuits that have considered substantive due process challenges to COVID-19 vaccine mandates, held Jacobson v. Massachusetts was binding and controlled and thus rational basis review applied to the plaintiffs’ substantive due process claim. Concluding that the policy survived such review, the court explained that the LAUSD could have reasonably concluded that COVID-19 vaccines would protect the health and safety of its employees and students. For this same reason, said the court, the plaintiffs’ equal protection claim failed under rational basis review. Judge Owen dissented and Judge Lee, joined by Judge Collins, dissented in part (Health Freedom Defense Fund, Inc., No. 22-55908 (9th Cir. July 31, 2025)).

LAUSD policy. In August 2021, the LAUSD issued a policy requiring mandatory vaccination for all district employees. The stated purpose of the policy was to “provide the safest possible environment in which to learn and work.” At the time it was issued, health experts had been recommending that individuals get COVID-19 vaccinations and had been reporting that such vaccinations were effective in preventing and spreading the disease.

Lawsuit. In November, the plaintiffs—the Health Freedom Defense Fund, California Educators for Medical Freedom, and individuals who are or were employed by the LAUSD—sued, alleging that pursuant to the policy, the LAUSD threatened to terminate employees who failed to get the COVID-19 vaccination and terminated at least two of the individual plaintiffs based on their refusal to get vaccinated. Among other things, they asserted substantive due process and equal protection claims.

Prior court proceedings. The LAUSD moved for judgment on the pleadings, which the district court granted. It found that, under Jacobson, the substantive due process claim failed because the policy did not violate any fundamental right and survived rational basis review. Although it allowed the plaintiffs to amend their equal protection claim, they declined to do so and instead appealed.

A divided Ninth Circuit panel vacated the district court’s order and remanded. The majority determined that the case was not moot because the LAUSD had failed to show it was reasonably clear the policy would not be reinstated. It then held that the district court erred in applying Jacobson, vacated the district court’s order, and remanded for further proceedings. The LAUSD petitioned for rehearing en banc and a majority of the circuit’s active judges voted to rehear the case.

Mootness. Addressing first whether the policy was moot, the en banc court pointed out that the plaintiffs sought “injunctive relief restraining [the LAUSD] from enforcing the [Policy]” and “other and further relief as the Court may deem just and proper.” They also alleged that one of the individual plaintiffs was terminated by the LAUSD for refusing to be vaccinated and another was separated from his employment after objecting to being vaccinated. Pointing to the plaintiffs’ broad request for any proper injunctive relief together with their allegations that individual plaintiffs have been terminated under the policy and have not been reinstated, the court found this encompassed a request for reinstatement.

And because “reinstatement would undo some effects of the alleged illegal action—the LAUSD’s enforcement of the Policy—a court could grant effective relief despite the Policy’s rescission,” the court stated, finding this case was not moot.

Due process. Turning to the plaintiffs’ due process claim that the policy violates their fundamental right to bodily integrity in refusing medical treatment, as the vaccines are “therapeutic treatments for COVID and not vaccines at all,” the court, joining its sister circuits that have considered substantive due process challenges to COVID-19 vaccine mandates, first held that the U.S. Supreme Court’s 1905 decision in Jacobson v. Massachusetts controlled its analysis. In that case, the Court considered a substantive due process challenge to a smallpox vaccination requirement for all adult residents of Cambridge, Massachusetts, brought by an individual who had been criminally convicted for refusing to get vaccinated in violation of the regulation.

The Jacobson Court explained that state legislatures and other policymakers have the authority to enforce “reasonable [laws]... as will protect the public health and the public safety,” like vaccination requirements and determined that the Constitution secured no fundamental right to be free from vaccine requirements imposed to protect the safety and health of the community. Having determined that Jacobson had no fundamental right to refuse the vaccination, the Court essentially applied rational basis review to his due process challenge, the court here observed, noting that “Jacobson holds that the constitutionality of a vaccine mandate, like the Policy here, turns on what reasonable legislative and executive decisionmakers could have rationally concluded about whether a vaccine protects the public’s health and safety, not whether a vaccine actually provides immunity to or prevents transmission of a disease.”

Rational basis review. Pointing out that Jacobson is “materially indistinguishable from this case,” the court found it was required to apply rational basis review and the policy easily survived such review because it was more than reasonable for the LAUSD to conclude that COVID-19 vaccines would protect the health and safety of its employees and students. The plaintiffs conceded that COVID-19 vaccines “lessen the severity of symptoms for individuals who receive them,” and experts at the time, including the CDC, reported that COVID-19 vaccines “are highly effective at protecting vaccinated people against symptomatic and severe COVID-19,” and “[f]ully vaccinated people are less likely to become infected” and “less likely to get and spread SARS-CoV-2.”

While the plaintiffs argued that Jacobson should be limited to only those vaccines that prevent the spread of a disease and provide immunity, the Supreme Court, observed the en banc majority, determined that Jacobson’s claims about the smallpox vaccine, which were very similar to the plaintiffs’ claims here, were immaterial given the other evidence from which the legislature could have reasonably concluded that the vaccine would likely protect the health and safety of the public. “Jacobson thus applies to vaccination requirements regardless of whether such vaccines actually provide immunity and prevent the spread of disease or whether they provide no immunity and merely render COVID-19 less dangerous to those who contract it, so long as policymakers could reasonably conclude that the vaccines would protect the public’s health and safety.”

Also rejected was the plaintiffs’ contention that a heightened standard of review applied based on a more recent line of cases that recognize a fundamental right to refuse unwanted medical treatment. “Whatever the reach of these cases, they did not overrule Jacobson,” said the court, noting that “even Plaintiffs do not go so far as to claim that Jacobson is no longer good law.”

Equal protection. As to the plaintiffs’ equal protection claim, the court noted that the plaintiffs conceded it was subject to rational basis review. “Because we hold above that the Policy is rationally related to the LAUSD’s legitimate interest in protecting the health and safety of its employees and students, Plaintiffs’ equal protection claim fails.”

Owens’ dissent. Judge Owens, dissenting, argued that the case was moot as there was no policy for the court to enjoin or declare unlawful. “We lack Article III jurisdiction and must dismiss this case.” The majority, he argued, attempted “to skirt the mootness problem by asserting that the complaint ‘fairly encompasses a request for reinstatement,’ leaning on a boilerplate catchall request for ‘other and further relief as the Court may deem just and proper.’” But not surprisingly, wrote Owens, “our sister circuits routinely reject attempts to grow a magic Article III jurisdiction beanstalk from boilerplate language.”

Lee partial dissent. Judge Lee, joined by Judge Collins, declared that “the majority’s opinion comes perilously close to giving the government carte blanche to require a vaccine or even medical treatment against people’s will so long as it asserts—even if incorrectly—that it would promote ‘public health and safety.’ But the many mistakes and missteps by our government and the scientific establishment over the past five years counsel caution: Their errors underscore the importance of carefully evaluating the sort of sweeping claims of public-health authority asserted by the Los Angeles Unified School District (‘LAUSD’) here.” The court, Judge Lee asserted, “should not affirm the dismissal of this lawsuit challenging LAUSD’s COVID-19 vaccine mandate—without permitting the plaintiffs to offer evidence to rebut the government officials’ far-reaching claims.”

The case is No. 22-55908.

Judge: Bennett, M.

Attorneys: John W. Howard (JW Howard Attorneys) and George R. Wentz Jr. (The Davillier Law Group) for Health Freedom Defense Fund, Inc., Jeffrey Fuentes, Sandra Garcia, Hovhannes Saponghian, Norma Brabila, and California Educators for Medical Reform. Keith A. Jacoby, Esquire (Littler Mendelson) for Alberto Carvalho, Ileana Davalos, George McKenna, Monica Garcia, Scott Schmerelson, Nick Melvoin, Jackie Goldberg, Kelly Gonez, and Tanya Ortiz.

Companies: Health Freedom Defense Fund, Inc.; California Educators for Medical Freedom

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