A group of Ohio University students are suing the university over its vaccine requirement. They are represented by an Akron law firm that has filed similar suits against three other public universities — with the support of an advocacy organization that challenges vaccine mandates.
Mendenhall Law Group filed suit Dec. 7 in Athens County Court of Common Pleas, on behalf of 16 plaintiffs seeking injunctive relief from what they say is an unlawful vaccination requirement.
In late August, Ohio University announced that every student, faculty, and staff member had to be vaccinated against COVID-19 or have an approved exemption by Nov. 15. Those with an approved exemption must undergo weekly asymptomatic COVID-19 testing. Those without exemptions will not be allowed to participate in in-person activities like classes.
“The university has to respect that we’re asking for a ruling that they are limited with regard to these measures — which would (also) include masking and testing,” Thomas Connors, attorney for the plaintiffs, said.
In a statement, Ohio University spokesperson Jim Sabin said the university looks forward to arguing its case.
“The University believes its actions addressing community health concerns brought on by the pandemic are necessary, scientifically supported, and legally valid,” Sabin said in a release. “We have no further comment at this time, but the University looks forward to presenting its full position to the court.”
Akron-based Mendenhall Law Group also represents plaintiffs suing Bowling Green State University, Miami University and the University of Cincinnati over COVID vaccine requirements, as well as the J.M. Smucker Company. The office is backed by Ohio Stands Up!, a 501(c) 4 advocacy group of "God-fearing, patriotic volunteers from Ohio" that "aims to educate Ohioans and all Americans on the reality of COVID-19 while ensuring that our constitutional rights are honored in the process," according to a Nov. 4 press release announcing its partnership with Mendenhall Law Group.
"This small firm in Akron, Ohio is dedicated to representing and litigating cases involving unconstitutional COVID policies impacting Ohioans," the release stated.
The press release says that Mendenhall "is seeking to challenge other universities who are implementing similar policies" and that the office is working on cases "involving a variety of sectors."
On its website, Ohio Stands Up! distributes a "COVID fact sheet" prepared by the Weston A. Price Foundation, which has been flagged by Quackwatch and Science-Based Medicine for promoting misinformation. It also offers a brochure on masks titled "Masks Don't Work."
Laying out the case
The plaintiffs will argue that state law prevents the university from discriminating against those who choose not to receive an emergency-use authorization vaccine. In July, Ohio Gov. Mike DeWine signed House Bill 244, which prevents public schools and universities from mandating COVID-19 vaccines until they receive full approval from federal officials. The law took effect in November.
In August, the FDA approved the Pfizer-BioNTech vaccine for full use, to be marketed under the brand name Comirnaty.
As in its other lawsuits, Mendenhall lawyers argue that the vaccine being distributed is the Pfizer-BioNTech vaccine that was given Emergency Use Authorization, not the Comirnaty vaccine given full approval. The two are interchangeable, according to the FDA; Connors argues that the naming distinction is legal, not medical.
Sharona Hoffman, a pharmaceutical law and employment discrimination professor at Case Western Reserve University, said it makes no difference whether the vaccine you receive bears the Pfizer-BioNTech label or the Comirnaty brand name.
“Things change names all the time, but the substance of the vaccine was what was approved,” Hoffman said.
Connors believes the law strips the university of the power to discriminate against unvaccinated individuals through means such as mandatory masking and testing.
“It's not like they can't do this — but it’s limited to people who are diagnosed with a disease or have come into contact with someone who has a disease,” Connors said.
Hoffman said while the General Assembly has weakened the power to declare health orders, government traditionally enjoys powers to enforce public health, the 1905 Jacobson V. Massachusetts case determined state legislatures have powers to enforce public health law. The decision also stated local boards of health determined when mandatory vaccinations were needed, thus making the requirement neither unreasonable nor arbitrarily imposed.
Hoffman said the outcome of the case is not certain.
“I would hope it doesn’t succeed because it would be horrifying,” Hoffman said. “The Ohio legislature did what it did and there may be a judge that is happy to continue that or move that a further step — it's hard to anticipate but I would hope that universities have this power.”
A long time coming?
Plaintiff Tyce Patt, an OU junior studying marketing, said he was moved to join the lawsuit after lengthy email exchanges with university health officials and other administrators about his concern with vaccine mandates.
Patt has been a vocal opponent on campus against vaccination mandates and coronavirus restrictions. Patt previously started a petition on Change.org titled “Ohio University: Allow Students The Right To Choose What's Best For Their Health," which claimed that students should be allowed to decide whether to follow COVID-19 guidelines such as masking, social distancing and mandatory testing.
The petition — which collected more than 350 signatures — also stated that vaccinations violate the Nuremberg Code, a set of 10 guidelines for human medical experimentation that were part of the 1947 verdict in the trial of Third Reich physicians who forced medical experiments on concentration camp inmates and committed mass murder disguised as euthanasia. The code emphasizes informed consent, legitimate scientific purposes and benefit to society.
Coronavirus vaccines currently available underwent broad and widespread clinical studies before being offered to the public.
Patt was serving as the College of Business representative to Ohio University Student Senate when he posted the petition. Senate denounced the petition, saying it employed “unacceptable rhetoric” and said the Nuremberg Code reference demonstrated a “blatant disregard for human rights.”
In an Oct. 2021 Student Senate meeting, Patt engaged with Gillian Ice, the special assistant to the president for public health operations, arguing the blanket lockdowns of students in dormitories due to COVID-19 spread was detrimental to students' mental health, The New Political reported.
The Center for Collegiate Mental Health at Pennsylvania State University reviewed data on 43,000 college students who sought treatment in fall 2020, The Washington Post reported. Of those, 72% said the pandemic had negatively affected their mental health.
“I feel like we all felt (a vaccine mandate) was coming,” Patt said of the group of concerned students and parents that organized before the mandate. “Months before we ever thought about filing a lawsuit, we continued to email them.”
The plaintiffs look forward to their day in court, he said.
“Countless studies have shown that the virtual class and hybrid class has done nothing but harm students — we know students are the lowest risk group and I look forward to arguing our position in court too,” Patt said.
He also expects backlash from fellow students and others.
“It just comes with it — I’ve dealt with it for two years people don't like to hear things they don't like to hear,” Patt said.
Athens County Court of Common Pleas Judge George McCarthy will preside over the case. No hearings have been scheduled.