May University Faculty/Staff/Students Sue Pseudonymously Over Limits on Religious Exemptions from COVID Vaccine Mandate?

Yesterday, I wrote about another controversy in Maine. Last week, I also blogged about the division among courts regarding whether students can sue pseudonymously for discipline for violating COVID protocols. Today we get another opinion, this time in favour of pseudonymity regarding the challenge to vaccine mandate. Magistrate Kathleen Tafoya’s opinion is here Does v. Bd. of Regents (D. Colo.).

“Ordinarily those who use the courts need to be open to the possibility of being subjected publicly to scrutiny.” The “test” for allowing a plaintiff anonymously to go forward is whether the plaintiff has substantial privacy rights. Outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.” …

Plaintiffs first argue that medical and other privacy issues are woven throughout Plaintiffs’ claims, and that their Amended Complaint asserts claims under the Americans with Disabilities Act … requiring the Court to take special notice of Plaintiffs’ medical privacy rights. Plaintiff[s] assert[] that the vaccination status of a person is recognized to be protected, confidential information by an array of federal statutes, including the ADA itself, as well as the Family Educational Rights and Privacy Act, and the Health Insurance Portability and Privacy Act….

This court rejected the argument that the statutorily-imposed confidentiality protection alone satisfied the sensitive and personal portion of the anonymity argument. The court will still consider the privacy laws as part of its discretionary conclusions.

The Plaintiffs in this instance seek to first enforce their constitutional non-medical rights. They seek to have the policy of mandatory vaccination against COVID-19 (and its variants) exempted from religious and not medical considerations by the University. Their unvaccinated status is the only common medical condition between the plaintiffs. All Plaintiffs suffered from this condition as a result.

Absent the current political climate, whether a person has been vaccinated or not from various maladies that might befall a human being is not particularly sensitive or personal, even though such information is protected from disclosure under HIPPA as medically related…. [S]tanding alone, a medical condition that is described as unvaccinated against COVID-19 is not so highly sensitive and personal in nature as to overcome the presumption of openness in judicial proceedings….

[H]But neither the court or the litigants can pursue litigation in a vacuum. In fact, there is a political climate as well as public attitudes about those who are refusing to be vaccinated from COVID-19 and these must be considered and balanced by the court. [Tenth Circuit precedent]. The plaintiffs claim that outsiders who know their decision to not get vaccinated are subject to substantial risk, even physical, harm. (Check out Am. Compl.Compl. Gun them down while they’re all in one place and let God sort it out”; President Biden quoted as saying “We’ve been patient, but our patience is wearing thin, and the refusal has cost all of us ….”)

Plaintiffs claim that they are potential victims of bodily harm by others due to being unvaccinated. They also fear losing their professional standing with employers and education institutions, where they may be able to seek admission or employment in the future in healthcare. If their identities are made public, plaintiffs assert that they face the possibility of being ostracized, threatened with harm, fired immediately, or other retaliatory consequences. This lawsuit does not include these anticipated damages. The court will need to determine whether the injury sought by Plaintiffs would result from exposure of their real identities. Because of The disclosure of plaintiff’s identity.” …

[T]There are no claims that the plaintiffs received threats or physical attacks from any person. Plaintiffs’ identities were known to the Defendants who had received all religious exemption applications from COVID-19 and had responsibility for turning down any religious exemption requests. There is no indication that anyone associated with any defendant, knowing Plaintiffs’ identities, has threatened or harmed any plaintiff, other than as alleged in the Amended Complaint….

Plaintiffs may be exposed to the public if they identify themselves. President Biden used this same group in his lament about how “all of us” were hurt when an individual chose not to receive vaccinations. Of course, the same public is entitled to have open access to civil and judicial records.

The truth is, at the moment, all Americans can get vaccines free of cost. No doubt, there is a sense of hostility in this country towards people who don’t choose to become vaccine-vaccinated. Plaintiffs’ Motion presented evidence supporting their argument that choosing to not become vaccinated can stigmatize someone as not caring for others. This especially considering the numerous mutations identified so far and uncertainties surrounding vaccination protection if the virus spreads. Both sides are often bitter and personal in their arguments about the vaccine mandate.

The court does not have the authority to try to settle these disputes, it is only authorized to recognise them and weigh the potential danger to those being called anti-vaxxers against any legal precedent that holds that “[c]Ourts are institutions that serve the public’s public interests. [and] … that secret court proceedings are anathema to a free society.”

Given the merits of the litigation, each Plaintiff’s identity is not relevant to the main allegations in the complaint. The plaintiffs have not been shown to be sincere about their religious objections to the vaccines currently in use. In fact, the individual plaintiffs who requested a religious exemption from a requirement to receive a COVID-19 vaccine are knowingly placing their own health at risk in order to uphold their religious convictions….

The court also agrees with Plaintiffs about the weak public interest in the identities of the litigants in this case. It will become public knowledge that some people at the University of Colorado Anschutz Medical Campus have raised religious objections to getting the COVID-19 vaccinations. These were generally based on stem cells taken from aborted fetuses used in research.

The University denied these exemptions, as it only permitted religious exemptions to those who were members of organized religions that forbid vaccines. Plaintiffs allege that the disallowance of their requests for religious exemption, and the ultimate penalties that were visited upon them as a result of them being unvaccinated, violated individual constitutional guarantees of religious neutrality and the entanglement between government and religion, as enshrined in the First … Amendment[] ….

Accordingly, issues before the Court regarding the merits are not dependent on the identities or the acts of Plaintiffs. They depend more on the actions and decisions of Defendants. Defendants can be public agencies, government entities, or actors. It is of vital importance to the public that the Constitution of their public institutions policies are upheld. The policy, and the execution thereof at the Anschutz University campus is what is being challenged, but not the individuals who claim the constitutional violations.

Therefore, … the court finds that the Plaintiffs have a substantial privacy right in protecting against public knowledge of their identities that outweighs the presumption of openness in judicial proceedings under these limited circumstances and that they should be allowed to proceed via pseudonyms until further order of the court.