Appellate court allows discrimination claim regarding Ohio University’s COVID policies to go forward
By: Reese Thompson
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ATHENS, Ohio (WOUB) – A state appellate court is allowing students and staff to move forward with a discrimination claim against Ohio University regarding its COVID-19 policies during the height of the pandemic.
The case originated with a lawsuit that argued the university’s policies on masking, testing and vaccinations were discriminatory and violated the plaintiffs’ constitutional rights. A trial judge had dismissed the lawsuit, in part on the grounds that the plaintiffs lacked standing.
The plaintiffs appealed and the appellate court upheld the trial court’s dismissal of three of the four claims, but it found the plaintiffs did have standing to pursue their claim that the university’s policy on testing for unvaccinated individuals was discriminatory.
Ohio University’s COVID-19 policy required students and staff to receive weekly testing if they were not vaccinated, while those who were vaccinated did not have to do so.
The appellate court said the discrimination claim met the three criteria to show standing: that the plaintiffs suffered injury due to the university’s policies, that the university caused that injury to occur, and that the injury could be redressed. It sent the case back to the trial court, where the plaintiffs can now try to pursue that one claim.
Pittsburgh higher education attorney Jeffrey Weimer, who is not involved in the case, offered some legal perspective on the decision.
“It does seem to acknowledge that the plaintiffs have alleged that they were treated differently than either employees or students who were vaccinated,” Weimer said. “That at least gets them over this initial threshold or hurdle to pursue that kind of discrimination claim.”
Ohio University will have to find another way to respond to the allegations. Weimer said one option could be arguing mootness. In July 2o21, Gov. Mike DeWine signed a bill prohibiting colleges and universities from requiring vaccines that do not have full FDA approval and prohibiting discrimination against people who have not received “such a vaccine.”
By the time the plaintiffs filed their lawsuit in December 2021, one COVID vaccine had already received full FDA approval. A month after the lawsuit was filed, a second vaccine received full approval. The university might argue that it was not prohibited from discriminating against the unvaccinated given that fully approved vaccines were available.
“I think this mootness issue … is likely to become a big deal,” Weimer said. “If the university is able to demonstrate that, in fact … the vaccines have been fully approved by the FDA, in large respect this issue will go away.”
Weimer said the university has other options as well.
“They also make arguments to suggest that the harm of having to go through the additional testing or submit negative test results is effectively outweighed by the need for the university to maintain the safety and health of the overall community,” he said.
The lawsuit against Ohio University was one of several identical lawsuits filed against universities in Ohio by the same law firm. At least one other state appellate court has allowed plaintiffs to proceed on the discrimination claim.
WOUB made multiple attempts to reach the attorneys for the plaintiffs and Ohio University for comment but did not receive a response.