Judge pauses WMU's athlete vaccine mandate, denies halt of MSU's mandate

A federal judge on Tuesday issued a temporary restraining order barring Western Michigan University from mandating COVID-19 vaccination among its athletes. 

But U.S. District Judge Paul Maloney denied a request for a temporary restraining order from a Michigan State University employee who is suing the university over its vaccine mandate on the argument that she has immunity.

Maloney's 14-day pause on Western's vaccine mandate for athletes comes after four student athletes sued the university Monday on the grounds that the requirement violated their religious beliefs. 

After the university denied their request for religious exemptions, the athletes were set to be permanently kicked off their teams if they weren't vaccinated prior to Tuesday. 

Maloney said Tuesday that Western's mandate "is not justified by a compelling interest and is not narrowly tailored," elements that are required if there is an infringement on religious rights. 

"When law forces an individual to choose between following her religious beliefs or forfeiting benefits, the law places a substantial burden on the individual's free exercise of religion," wrote the judge, who is an appointee of former President George W. Bush.  

The university could subject the athletes to weekly testing or face mask use, Maloney said.

Emily Dahl, Hannah Redoute, Bailey Korhorn and Morgan Otteson — all seniors on the university soccer team — filed their suit on Monday against Western University Michigan, university President Edward Montgomery and its athletic director, Kathy Beauregard. They said the university's requirement that student athletes get vaccinated "seeks to override" their "sincerely held religious beliefs and viewpoint and discriminates against them on the basis of their religion."

University spokeswoman Paula Davis said Monday Western Michigan wouldn't comment on pending litigation.

For the rest of the student body, Western Michigan is requiring regular testing of those who are unvaccinated.

The university's denial of exemptions for the athletes makes its allowance for a religious exemption appear to be no more than a "pretense," said David Kallman, the athletes' lawyer. The university's denial essentially broke the contract it  entered with the athletes when they agreed to play for the team, he said. 

"They’re acting in reliance on what the university offered them and they’ve been upholding their end of the argument for four years,” Kallman said. 

He said Tuesday's temporary restraining order was just a "first step."

"We hope they’ll sit down with us and try to work it out now," Kallman said. "But if not, we’ll go to court.”

Maloney has scheduled arguments on a more permanent preliminary injunction at Western for Sept. 10.

On Tuesday afternoon, Maloney ruled Jeanna Norris, 37, had not shown a strong likelihood of success in her case against MSU. Norris had argued she has natural immunity after contracting COVID-19 late last year and her immunologist said vaccination was medically unnecessary.

Maloney said her arguments that the vaccine requirement violates her right to privacy run counter to a 1905 case that found a Massachusetts law allowing cities to mandate the smallpox vaccine was a "valid exercise of its police power to protect the health and safety of its citizens."

The judge also cited a recent case out of Indiana University in which the district court denied a motion seeking to halt the university's vaccine mandate. An appellate court and U.S. Supreme Court Justice Amy Coney Barrett refused to overturn the district court's decision.

Further, because Norris is an at-will employee, "she does not have a constitutionally protected property interest in her employment position," Maloney wrote. 

The judge scheduled a hearing on Norris' motion for a preliminary injunction for Sept. 22. 

eleblanc@detroitnews.com

Craig Mauger and Kim Kozlowski contributed.