University of Cincinnati

Cincinnati, OH - University of Cincinnati entrance sign

CINCINNATI, Ohio - Calling it a civil rights issue designed to check a university’s abuse of power, Akron-based Mendenhall Law Group filed a lawsuit against the University of Cincinnati (UC) and its board of trustees over the school’s COVID-19 vaccine mandate.

The action was introduced in the Hamilton County Court of Common Pleas on Wednesday and includes four plaintiffs: students Benjamin Lipp, Danielle Seymore, Katelyn Verbarg and Nicholai Lekson. Warner Mendenhall and Kyle Wenning are representing the plaintiffs.

Lipp, Seymore and Verbarg have received exemptions. Lekson has met the vaccination requirement, but he objects to the school’s mandate policy and the possibility of having to receive a booster shot to stay in school.

Multiple students told The Ohio Press Network (OPN) that they have received coercive emails from UC officials, and those who have questioned the mandate have been subject to derogatory remarks, including “you freedom people are annoying.”

Seymore, who is one of the plaintiffs, lives in Cincinnati with her husband and their 13-year-old daughter. Pursuing a social work degree, she was granted a religious exemption from UC, but she says that she continues to receive weekly emails urging her to get tested.

Lipp, who is also a plaintiff, is 24 and a senior majoring in finance. He points out that the virus has a more than 99% survival rate for Ohioans in his age range and the vaccine does not prevent transmission or infection of the virus.

“Even as an unvaccinated student, I have low risk of dying from COVID, and I’ve had the virus, so that puts me in a different class because of my natural immunity,” he explained. “If someone else is vaccinated, why do I need to be vaccinated?”

His personal opinion aside, Lipp said that he chose to join the lawsuit as a plaintiff because he believes university officials are violating his rights.

“You don’t have to have an opinion on COVID-19 to agree with the lawsuit. It’s not about whether or not masks and the vaccine works. It’s about public officials not acting within legal authority,” Lipp said. “If they can get away with this, what else will they try? This lawsuit is important because it is designed to hold them accountable.”

In September, UC instituted a COVID-19 vaccine mandate for students, faculty and staff. Students were required to show proof of at least one dose of the shot by October 15 and two doses of the inoculation by November 15.

The mandate applies to students and university employees who visit campus for class or work, and individuals who use campus facilities. Medical and religious exemptions to the vaccine requirement can be requested, according to the mandate.

Students who do not comply by January 3 will be unenrolled from spring semester classes. Weekly testing is required between November 15 and January 3 for anyone not in compliance with the mandate.

According to the lawsuit filing, “this is a civil action for declaratory and injunctive relief involving the statutory and constitutional validity of UC’s vaccination and health measure mandates effective Sept. 1, 2021.

“Those exempted must be tested weekly, even if they are asymptomatic. Students and faculty who are not approved for an exemption or have not been vaccinated are subject to discipline in accordance with applicable UC policy and collective bargaining agreements.

“By reason of Ohio Revised Code 3709.212 and Ohio case law, the defendants lack authority to order those not diagnosed with a disease or have not come into direct contact with someone who has not been diagnosed with a disease to wear masks, undergo testing or limit their activities.”

The filing adds that the mandate also violates Ohio Revised Code 3792.04 because UC is a state school of higher education and is “discriminating by requiring plaintiffs to engage in or refrain from engaging in activities or precautions that differ from the activities or precautions of an individual who has received a vaccine that has not been fully approved by the FDA.”

The mandate violates Article 1, Section 1 of the Ohio Constitution in that it violates the plaintiffs’ right to refuse medical treatment, the filing explained.

According to the lawsuit, the mandate also violates Ohio Revised Code 2905.12 in that it coerces plaintiffs from taking or refraining from actions over which they should have legal freedom of choice by taking, withholding or threatening to take or withhold official action.

“One of the things we have seen across the country is exactly what we are pointing out in this lawsuit, that authorities are stepping outside the bounds of their authority,” Mendenhall said. “That equals an abuse of power, and it’s happening at federal, state and local level and at colleges and universities. Our lawsuit is designed to check the abuse of power.”

According to UC’s website, students can register for spring semester classes if they are inoculated after the deadline as long as they submit proof of vaccination no later than two weeks before the start of the spring semester. Unvaccinated and non-exempt students will be unenrolled from in-person classes by spring semester and required to take online courses.

One UC student pointed out that online students are still subjected to the vaccine mandate and testing unless their degree path is fully online—known as a “direct online degree path”—of which there are few options.

The website also includes: “The university will consider disciplinary measures in accordance with established policies for faculty and staff who are not fully vaccinated or have not been granted an exemption before the beginning of spring semester. Discipline for represented employees will proceed in accordance with agreed-upon processes currently being discussed with their collective bargaining units.”

A recent email from the school to UC staff read, “The COVID team continues to dialogue with non-compliant members of the UC community to ensure a safer environment for all. Now more than ever, we request that those who are not in compliance with the university’s vaccine requirement to align with UC’s overall goal of public health safety.”

OPN was provided with numerous emails obtained by a public records request that show UC officials attempting to implement their COVID-19 vaccine mandate despite the passage of HB 244, which was signed into law by Gov. Mike DeWine and became effective on October 13.

The legislation prohibits Ohio public schools from requiring vaccines not yet approved by the U.S. Food and Drug Administration (FDA). HB 244 also says that public schools cannot discriminate against people not vaccinated by mandating that they perform different activities from their vaccinated counterparts. Schools covered by the bill include state colleges and universities along with public schools, joint vocational school districts, college-prep boarding schools and STEM schools.

In one email obtained by OPN, UC’s chief academic officer Valerio Ferme sent a message to Dustin Calhoun, the university’s chief medical preparedness officer.

“Pfizer is one of the three vaccines. We know that HB 244 says that, until a vaccine is approved by the FDA, it cannot be required. So would we request that everyone on campus be vaccinated with Pfizer? What happens to those who are ‘stuck” with Moderna and J&J? This approval would certainly allow us to ask the unvaccinated campus population to take the Pfizer vaccine, but can we ask the others to switch? Dustin, you said yesterday that the new recommendation is to have people get a booster after 8 months. So that might affect also how a switch for the Moderna people might happen.”

Calhoun responded by saying, “There are some unknowns here. Moderna and J&J likely have a bit of time still. Certainly, Moderna recipients are allowed to get Pfizer as their booster dose, if need be. We definitely would not require (for both regulatory and medical reasons) Moderna and J&J recipients to revaccinate. OGA would likely need to weigh in on this, but my suspicion on how this would work is simply a requirement that everyone be vaccinated for COVID-19, and the fact that at least one of these is fully FDA approved would make this ok in the setting of HB 244. People could still choose to be vaccinated with Moderna or J&J, and we would still recognize these are fulfilling the requirement.”

“We have autonomy in our medical-decision making,” Mendenhall said. “It is unprecedented that a university would require an experimental medical procedure on students or masking.

“We are waking up to the fact that the COVID-19 injection is not stopping spread,” Mendenhall added. “Those who get the shot do not provide protection to anyone else. It is absurd that people are mistreated because they choose to not get a shot.” He noted that natural immunity is overlooked and it can be at least six times stronger than the vaccine.

“We would like [university officials] to end all mandates and not treat people differently,” Mendenhall added when asked about the lawsuit’s objective.

Jeff Louderback is an independent reporter and political correspondent for The Ohio Press Network.

(1) comment

Ernie

Let's not forget that the FDA "approved" shot, Cormirnaty, is not available in Ohio.

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