Judges Shocked and Floored by Ongoing Vaccine Mandates

LA Unified School District Sued for The COVID Vaccine Mandate

Health Freedom Defense Fund Inc. and teachers from the LA Unified School District (LAUSD) sued LAUSD for the ongoing COVID vaccine mandates. Judge Fischer from the lower court decided the case for the LAUSD. Her reasoning was that even if the vaccines are ineffective completely the mandate if imposed by the state will be upheld. An appeal was filed in the 9th Circuit Court of Appeals. The court arguments and the appeals court judges is important for us to be aware of.

I am linking the original video for the court hearing and also adding my transcription of it. My apologies in advance for my inability to correctly and completely transcribe due to audio levels and the word-salad by the defense counsel.

Below is my talk presenting this transcription, the transcription, and the original video.

Transcription (for the defense counsel:

13:10 Judge Nelson: Is it true that the vaccination requirement is still in effect?

LAUSD Counsel: Yes your honor.

Judge Nelson: Interesting. Is there anywhere else in the country where that is still the case?

LAUSD Counsel: I don’t know your honor.

13:22 Judge Collins: Now, the vaccine mandate that is currently in place be satisfied by just having the initial two shots sequence back in 2021?

LAUSD: Yes

Judge Collins: And, with nothing further since then?

LAUSD: No boosters is my understanding.

Judge Collins: No booster requirements.

LAUSD: Yes. May it please the court I am Connie Michaels from Mandelson law firm and I represent the superintendent, chief human resource officer, and board members of Los Angeles unified school district which is in fact a public school district.

This is the second largest in the country.

It's our position that this case is absolutely controlled by Jacobson and the many, many, many cases after it that have dealt with vaccine mandates and covid related restrictions everyone from Biden vs. Missouri …

Judge Collins: Let me address the concern I have about this case which I think is unique among all the cases…

Counsel: certainly your honor.

Judge: … and that is, the breadth of judge Fisher's decision, because, as far as I am aware this is the only decision that holds that under Jacobson it doesn't matter if the vaccine does not prevent the transmission of the disease.

Because she addressed that concern and she said, “plaintiff’s reliance on this distinction is misplaced. Jacobson does not require that a vaccine have the specific purpose of preventing disease.” And then she just upheld it as essentially as mandatory medical treatment. But that seems not Jacobson, and it does seem to be Glucksberg. And, so, this rationale and this decision seems to me to be clearly wrong. Tell me why you disagree.

15:26 LAUSD: I do disagree your honor. For a number of reasons. The cases that have been relied upon by opposing counsel is bodily integrity cases deal with the situation where the forced medical procedure involve literally injecting people and other types of treatment like the like. Here, we are dealing with a condition of employment. It has long been a condition of employment at LA unified …

Judge Collins: But, do you agree that this is legally irrelevant weather or not the vaccines prevent transmission?

LAUSD: I believe that under the current state of the law courts have not made that distinction in the sense that …

Judge Collins: That’s not Jacobson. Because Jacobson rests on the principle of vaccination as a means to prevent the spread of smallpox. The whole rationale and if you go to the concluding part of justice Harlem’s opinion is this idea that you’re gonna defy the mandate and infect others. That’s the whole scenario of Jacobson.

But, you  are coming here and saying; no we have a right to condition employment on you conducting your medical treatment the way we like.

That’s not Jacobson. That’s something really different.

16:41 LAUSD: Your honor, a similar arguments have been inserted in other cases around the country …

16:47 Judge Nelson: <not clear> they have been adopted by other courts?

16:50 LAUSD: No. I didn’t find any other court that adopted the medical treatment concern …

16:55 Judge Nelson: Let me ask you this… I mean. You don’t need that broad of an interpretation of Jacobson to win the case, correct?

17:00 LAUSD: I agree. It’s a rational basis that … Judge Collins has a question. Counsel: I am so sorry your honor …

17:07 Judge Collins: But, Jacobson won’t apply if your position is to concede that the vaccines don’t prevent transmission. I mean, and that was … it’s alleged in the complain. And, this was done on the pleadings that they don’t. And, there’s a fair amount of science at this point that their ability to prevent transmission is in very limited window and it expires. And, yet, you’re willing to accept someone who had vaccine two years ago. Who clearly has no, it has no ability to prevent transmission. And, yet, today … This doesn’t fit Jacobson and it doesn’t seem to make a lot of sense.

17:49 LAUSD: Well, to be clear. I am not conceding that vaccines don’t help with respect to transmission. And, currently today you do have to have vaccines in order to be currently working at LA Unified … 

18:05 Judge Nelson: But, what’s the basis? I mean, I guess the question is, is there any rational basis to say that you had to have the vaccine three years ago now to continue working?

Counsel: first of all …

Judge: is that the question we are supposed to answer now?

18:23 LAUSD: Well. I think. The real question that you are answering now is to see if there is a rational relationship <mumbles, unclear> start that you have to see the fundamental right. And …

18:31 Judge Nelson: What if we, what we are here twenty years from now and LA, you know, is still requiring a whole new generation. The LA school district is requiring a whole new generation to get a vaccine. Wouldn’t we say, wait you can’t do that. There’s no current threat.

18:49 LAUSD: Your honor. There is no fundamental right here, simply because, there … You’re supposed to allow the state, in this case the district. And, give them the discretion to figure that they knew the different sides of the debate and …

19:05 Judge Nelson: That’s not. That’s not my question. What happened in 2020 happened in 2020. Here we have a situation where you’re still imposing this requirement. And, so, I mean, at some point the rational basis starts to wane. And, I, even under rational basis … I think we all agree that rational basis applies here. Well, plaintiff doesn’t. But even assuming rational basis at some point it starts to wane and that … I guess the question is whether you have come outside of Jacobson by prolonging it this long?

19:45 LAUSD: I don’t think we have your honor. Because you have to keep in mind we are dealing with a school. Schools are??? <unclear> very very large population that is impacted. Huge population in LA county. The school

19:56 Judge Nelson: But you could make that same argument twenty years from now. Five years from now.

20:01 LAUSD: O your honor they are still requiring smallpox vaccines in the school district. I mean there’s a number of vaccines. I do wanna make the point that without agreeing or conceding to it. Even if it was a medical treatment, I believe that there’s a rational basis with respect to that… Because …

20:21 Judge Collins: What will suggest that if this is a medical treatment that there is a fundamental right? Because, it talks about the right recognized in cruzane and says, “given the common law rule that forced medication was battery and the long legal tradition protecting the decision to refuse unwanted medical treatment our assumption – that it was a fundamental right in curzane—our assumption was entirely consistent with this nation’s history and constitutional tradition which is the standard that DOBs (Mobeen: department of buildings?) applies for substantive process.”

So if you redefine … that’s why I think it is so important: if you’re saying its medical treatment you are out of Jacobson and it seems to me that you are in the Glucksberg fundamental right and it stricts(???) with me.

21:10 LAUSD: First of all we are not conceding this is medical treatment. Even if we were for the purposes of this argument. Because it is a school district it is important that vaccine … even if it is just something that helps with respect to treatment … the reason it is important is that we want the students to be able to go to school and stay in school. So, if this treatment (makes air quotes) is such that it shortens the time that someone is ill …

21:36 Judge Collins: Are the students subject to vaccine mandate?

21:39 LAUSD: They were. They are not now.

Judge Collins: So, most of the people in the building are unvaccinated? But, this handful of people have to be vaccinated. And, that will pass … Are you claiming that that will pass strict scrutiny if we found strict scrutiny was applicable?

21:58 LAUSD: I don’t believe <unclear> strict scrutiny your honor. Bear in mind that many of these students couldn’t get vaccinated. They weren’t able to do so because of their age and the vaccines that were available. So we are talking about a point in time where the district made the decision that in-order to protect the staff, the students, and the community at large they were going to follow the guidance of the government and the CDC and various local state authorities and decide that vaccines were in fact a device to help prevent the spread of this particular disease.

22:36 Judge Nelson: Ok that’s … Again … that’s fine in 2020. What about today? What’s the justification for keeping this going? I mean … we … we got every other attorney in here saying there is no way we will require vaccines again today. You couldn’t get away with it. And, you are up here standing here saying, no this makes … this is completely common sense. I … we … we can keep doing … under your theory we can keep this in place for the next twenty years.

23:03 LAUSD: First of all your honor that’s nothing that was briefed. I don’t believe it is actually before the court … Not certainly suggesting that it goes on forever but we do know for example that there are COVID spikes right now. So, I can’t reveal …

23:16 Judge Nelson: You’re certainly undermining the movement’s argument for every other case that’s <chuckles, amused, unclear> …

23:21 Judge Collins: The problem I have, that’s why, I started with the question I did: there is no rational basis for believing that someone who got a two shot sequence in 2021 in March … say of … 2021 has any protection against transmission now in September of 2023. There’s just … seems to me to be irrational. Even the CDC does not claim that a shot sequence two and half years ago provides immunity against what’s circulating today.

And, so you …

That person is exempted even though they have absolutely no pro…

It just seems completely arbitrary.

Judge’s expression at this point

24:06 LAUSD: Your honor again, I don’t believe the issue today as opposed to what happened previously is really the issue that …

24:15 Judge Collins: But, it’s your policy today is that a vax mandate that is satisfied by a shot two and a half years ago that’s not rational.

24:25 LAUSD: Well, in fact no one that has not been vaccinated … not just with respect to COVID … with a list of different immunizations is allowed to come on board. And, that’s just … it’s a universal rule. It is applied to everyone.

24:38 Judge Collins: Of course the other things like mumps and measles … the vaccines prevent transmission for extended periods of time. And, there’s scientific basis for that. They have alleged that the vaccines don’t prevent transmission. CDC concedes that after a period of time they don’t prevent transmission.

And, yet, you are insisting on it still.

24:59 LAUSD: Well. Your honor we are very concerned about maintaining the health of our staff and until it is absolutely established that the vaccines have no effect …

25:06 Judge Nelson: And, the fact that 99% of … or maybe 99.9% of government bodies aren’t requiring mandates anymore isn’t enough to establish for you?

Counsel – makes an interesting expression.

Judge: I mean, I’m, I’m honestly shocked by your argument.

25:22 LAUSD: I understand your honor. With respect to what the district is going to do now. What they are considering doing now. There’s only so much I can tell you because It’s not in record. But, but, with respect to the vaccination requirement they have felt that until it is established that the vaccine is not of use in anyway that is important to go ahead and maintain it. And, if in fact it is a treatment as has been suggested … there is any ability …

25:50 Judge Hawkins: Inaudible … is saying that in order to lift the mandate which is in effect right now, one will have to establish that the vaccine doesn’t work at all?

26:07 LAUSD: One will have to establish whether there are other means. Because the test when we are dealing with rational basis has to do with how narrow it is. And, so here we will have to see, is the vaccine in fact the best tool at any particular time given the particular ability of the vaccines and the particular variants that exist with respect to COVID.

26:31 Judge Nelson: Can you point to any other government agency, government body, school board, state, city, fire department, anything that is taking these positions?

I mean, I didn’t understand this going into this case. I am really floored by this argument.

26:50 LAUSD: Well, ap the … we certainly have the Indiana university … north vs. Indiana university case where they came up with the same decision and decided that there’s no permanent??? basis to employment. And if you did not follow this particular rule; and this is decided in July 2023; that you can go ahead and work somewhere else or go somewhere else.

27:12 Judge Hawkins: Let me go around this argument just a bit, eh, my colleague judge Collins has pointed to the statement by judge fisher in the opinion that it does not matter how effective the vaccine would be, you know what he is referring to?

Counsel: I am so sorry, could you repeat that?

Judge: the statement apparently in the district court’s opinion that the vaccine mandate still in effect will be upheld even if the vaccine was ineffective completely. To paraphrase. Is it possible … here is my question I am getting to: is it possible to affirm the district court and disapprove of that language?

27:57 LAUSD: Under the rational basis statement, I don’t believe there is.

I don’t believe Jacobson made that type of distinction between treatment and transmission. And, this has not been discussed in the cases simil …

28:09 Judge Hawkins: Where did Judge Fisher come up with this, do you know? Did the school district argue to judge Fisher that it is irrelevant whether the vaccines work at all.

LAUSD: I don’t believe that was briefed your honor. I don’t believe ??? come up with this.

Judge: OK

Judge: thank you.

Counsel: I believe she is strictly following Jacobson and its progeny after that.

Judge: Thank you.

Counsel: Thank you.

28:34 Judge Nelson: Thank you. Do we have rebuttal?

Plaintiff’s Counsel: Yes. Just briefly your honors. I appreciate your your questions. I appreciate being given the opportunity to respond to them. Just had a few things

I wanted to respond to with respect to what counsel just said. The demonstration that the rule was arbitrary, capricious is partly that they were … it was imposed on people who were not teaching in person. In fact there was no in person teaching at the time that the mandate was imposed. So what is the rational basis for having somebody who's not even going to be there get a vaccine that he or she doesn't want. Secondly…

Judge Nelson: you've heard a better argument to support your position than what you just gave, but, but keep going.

Counsel: what is the better arguments is … is … is … what your honor said saying well you could make a rule but if the rule is that you have to wear a blue shirt to advance not rationally related to the, to the situation and would fall under any of the tiers of scrutiny.

So I just want to leave it with one thought. OK. Sorry, one more thought and that is if all of the students are unvaccinated, and the teachers are required to be vaccinated where's the rational basis for requiring the teachers to be vaccinated. I don't get that. I don't concede the rational basis is proper, proper standard. I do believe the balancing test is, but, under any standard an arbitrary and capricious rule should not stand.

All we're asking is if we go back to the court, we developed the evidence we presented to the judge and we see what she has to say about whether or not we can prove our case.

The last though I just want to leave the court with is counsel has said that their school districts have a unique … eh … a unique duty to students and to the student populations and I would say that's that is true I concede that it's not however superior to the United States’ constitution; it’s still subordinate. So, thank you.

Original hearing video: