The universities now argue our clients cannot show injury to support standing: “particularly...given that the University will no longer require vaccination against Covid-19 when the 2022 summer term starts.”
However, they misconceive the injury needed to show standing. Such injury involves the invasion of a legally protected interest—religious or medical rights. Our clients claim these interests are protected by the constitution and Ohio statutes.
The argument that our clients’ interests relating to the vaccine mandate will no longer be invaded as of the 2022 summer term, raises the issue of mootness. “[M]ootness is...the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Hirsch v. TRW, Inc., 2004-Ohio-1125, ¶8 (8th Dist.).
The U.S. Supreme Court has held that “voluntary cessation of a challenged practice does not moot a case unless ‘subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Trinity Lutheran v. Comer (2017).
In Speech First, Inc. v. Schlissel, (6th Circuit 2019) the university had “not put forth enough evidence to satisfy its burden to show that its voluntary cessation makes it ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. at 770.
Universities claim the power to reinstitute such mandates anytime. Here is one statement: “It is important to note that the university will continue to consult with medical and public health experts and may change our responses as needed.”
Statements like this keep universities from making the necessary showing that it is absolutely certain mandates will not recur. We will slog on until they give us that assurance or our appeals run out.