BGSU vaccine mandate lawsuit is dismissed

A civil lawsuit against Bowling Green State University for its vaccination policy has been dismissed.

Wood County Common Pleas Court Judge Joel Kuhlman dismissed the case Feb. 28 due to the plaintiff’s inability to plead the case sufficiently.

Additionally, plaintiffs’ motion for preliminary injunction was denied as moot.

BGSU did not have a comment at this time, said university spokesperson Michael Bratton.

On Dec. 23, three students and one faculty member filed a civil suit in Wood County Common Pleas Court.

Plaintiffs claimed the university’s Vaccine and Exemption Plan, which was put in place in September, discriminated against an individual who has not received a vaccine by requiring the individual to engage in or refrain from engaging in activities or precautions that differ from the activities or precautions of an individual who has received such a vaccine.

The complaint alleged that BGSU’s Board of Trustees violated student and employee constitutional rights by requiring them to provide proof of a COVID-19 vaccination dose. Also questioned was the mandate that all exempted unvaccinated individuals wear masks, be subject to testing and limit their activities on campus and barred from face-to-face classes.

They argued that the Vaccine and Exemption Plan was outside the university’s authority to enforce.

Plaintiff Andrea Hoerig, Tiffin, who is an assistant teaching professor at BGSU, was not vaccinated at the time the lawsuit was filed and had not received an exemption because she was not willing to agree to the required conditions of the defendants to receive it, according to court documents.

Plaintiffs Carolyn Dailey, Westerville; Gabrielle Downard, Bowling Green; and Amy Vorst, Columbus Grove, also had not received exemption but remained subject to exemption conditions. They are BGSU students.

In their motion to dismiss, the defendants, including the 12 university trustees, said three of the plaintiffs received exemptions under the university’s Vaccine and Exemption Plan and one plaintiff refused because “she is not willing to agree to the conditions required by defendants to receive an exemption,” according to court documents.

Student plaintiffs failed to identify any “threatened discrimination” that they would be treated differently than those students who were vaccinated, the motion to dismiss said.

Their vague reference to testing or other treatment was “conjectural and hypothetical.” Even their argument around masking was incorrect as plaintiffs were subject to the same masking requirements as vaccinated individuals.

“Therefore, the student plaintiffs do not have standing to maintain this action,” according to court documents.

The claim filed by Hoerig, who did not seek an exemption, also lacks standing as she also provided “conjectural and hypothetical” injury. She asked the court to block BGSU from taking disciplinary action as outlined in the vaccine plan; however, that complaint is not reviewable by the court.

In a similar case in Butler County, a case against Miami University was dismissed after the judge reasoned none of the plaintiffs had standing because they either received an exemption and were not required to take the vaccine or failed to request an exemption.

Similarly, BGSU plaintiffs Dailey, Vorst and Downard have each received exemptions and are not subject to the vaccination requirement. Plaintiff Hoerig indicted she is not vaccinated and has not applied for exemption. Since she refused to submit the procedural requirements of the Vaccination and Exemption Plan, she also lacks standing, court documents state.

“Therefore, as a threshold matter, plaintiffs lack standing to pursue the claims alleged in the complaint. Moreover, even if plaintiffs were able to establish standing, they have not asserted a claim for which relief can be grants,” the motion to dismiss stated.

In the original lawsuit, the plaintiffs stated that the defendants lacked authority to order those who are not diagnosed with the virus or have not come into direct contact with someone who has been diagnosed with the virus, to wear masks, undergo weekly testing, or to limit their activities. It was discriminating by requiring plaintiffs to engage in or refrain from engaging in activities or precautions that differ from those who have received the vaccine, court documents said.

The mandate also violated their right to refuse medical treatment, including vaccination and masking, according to court documents.

The court found that the claim is untenable and that plaintiffs did not sufficiently prove that a mask is an unwanted medical treatment that falls under the 14th Amendment’s due process clause.

The university dropped its mandatory mask mandate on Feb. 28.

The plaintiffs have 30 days from Feb. 28 to amend their complaint. Afterward, their case will be dismissed without prejudice.